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HR 2377, Other Guest Worker Issues (posted 2/27/98) H.R. 2377. Sen. Gordon Smith (R-OR) introduced S.1563, a 24-month pilot program identical to H.R. 2377, introduced by Rep. Bob Smith (R-OR). H.R. 2377, the Temporary Agricultural Worker Act of 1997, would create an H-2C nonimmigrant worker program as a two-year pilot program "to admit non-immigrants to perform temporary or seasonal agricultural services," with temporary defined as a job intended to last less than 10 months. Under the proposed H-2C program, employers wishing to hire foreign farm workers would file labor condition attestations (LCAs) with their local ES offices, send a copy to the INS district office, and post a notice of the attestation in the work place. Each LCA would include employer promises (attestations) to: (1) pay the higher of the minimum wage or the local prevailing wage "in the occupation in the area of intended employment" to US and H-2C workers; (2) file a job order with the local ES before the "need date" for workers, and (3) give preference to US workers until five days before the need date; and to employ H-2C workers for no more than 10 months in any 12-month period. The job orders filed with the ES would be different under the H-2A and H-2C programs. Under the H-2A program, employer job orders must be filed at least 60 days before the need-for-workers date, provide detailed job descriptions and offer free housing that is inspected by DOL and in-bound transportation; the detailed job offer under the H-2A program becomes a contract that the US or foreign worker can sue to enforce. Under the H-2C program, by contrast, there are no detailed requirements for employer job orders, and they can be filed as late as five days before the need date. Housing or a housing allowance must be offered to H-2C workers if it is the prevailing practice in the area; if employers offer housing to H-2C workers, it must comply with state and local housing codes, but not federal farm labor housing codes. Employers of H-2C workers must provide workers compensation insurance or, in the states where farm workers are not covered by workers compensation, insurance with equivalent benefits. The INS has three days to approve the employer's petition, and forward it to a US consulate abroad for issuance of H-2C visas to workers. Employers then provide the names of workers to receive H-2C visas to the US consulates. The foreign workers would receive visas that list their period of authorized US work, initially for 10 months, but with the possibility of up to two-year renewals. If an association was the US employer, the H-2C worker could be assigned a series of jobs for farmer-members of the association. The unique feature of the H-2C program is the trust fund established to encourage workers to return to their countries of origin. H-2A employers are exempt, and H-2C workers would be exempt, from the Social Security Tax (FICA) and federal Unemployment Tax (FUTA)--some states require employers of H-2A workers to pay state Unemployment Insurance taxes. Under the H-2C program, employers would pay FICA and FUTA taxes, plus 25 percent of workers wages, into a trust fund, which would be managed by the US Treasury, and used to pay expenses of the H-2C program. Any funds remaining after expenses are paid would be returned to workers in their country of origin if they apply for funds within 30 days of the expiration of their visas. Employers would not pay other fees for H-2C workers, as they do under the H-2A program. The H-2C program is an attestation program; the current H-2A program, by contrast, is a certification program. One way to think about the difference between these programs is that under attestation, the US employer opens the border gate to foreign workers-the ES can only review employer LCAs for "completeness and obvious inaccuracies"-while under certification, the border gate remains shut until DOL agrees that US workers are not available to fill the jobs which the employer wants to fill with foreign workers. Farm worker advocates oppose the H-2C program, even on a pilot basis, arguing that, with renewals, there could be as many as 75,000 H-2C workers in the US by 2000 under HR2377. A major concern of advocates and government agencies is the switch from certification to attestation; it is usually easier to persuade employers to make wage and working condition improvements before foreign workers arrive than after complaints are received about US and H-2C workers at work. If the H-2A and H-2C programs were to operate side-by-side, most employers would presumably use the H-2C program, since it imposes fewer costs and obligations, and provides them more flexibility. Researchers note that 75,000 H-2C workers, assuming they were employed year-round, could represent about 7.5 percent of the one million year-round equivalent work force, and three percent of the 2.5 million individuals who do farm work sometime during a typical year. A pilot H-2C program may have significant local impacts in the five areas selected by USDA to operate the program. Perhaps the major item that would be tested is the feasibility and effectiveness of withholding workers' wages to induce returns. Critics note that Jamaicans who participated in the H-2A program had more than 25 percent of their wages withheld under the private contracts that they were required to sign with the Jamaican recruiting agency. "Hundreds" reportedly remained in the US and gave up the 25 percent. Outlook. Jack King, the California Farm Bureau Federation's national affairs director, said that "We have had no shortages to speak of, but we fear that could change" if border and interior enforcement reduced the supply of unauthorized workers, and because farmers are planting more and more acres of labor-intensive fruits and vegetables, many in a manner that require hand harvesting. On October 1, 1997, Rep. Saxby Chambliss (R-GA) introduced HR 2595, the Farmers' Temporary Employment Assistance Act that would create a new guest worker program and overhaul the H-2A program. One Georgia farmer has obtained foreign workers under the H-2A program over the past four years, and the Chambliss proposal would reduce the notification period from 60 to 25 days, substitute employer attestations for DOL certification of the need for foreign workers, and end the currently required national search for US workers. Some worker wages would be withheld to induce returns. In California, Republican Attorney General Dan Lungren, a likely candidate to replace Governor Pete Wilson in 1998, renewed his 1995 support for a guest worker (companero) program in October 1997, saying that Latinos are likely to support it because it acknowledges the contribution of Mexican workers to California's economy. However, Latino groups attacked the proposal, saying that it tells Mexicans "We want your labor, but we don't want you to live here." Lungren in 1995 proposed a program under which a fixed number of Mexican workers would be allowed to enter the US to fill vacant farm jobs, and up to a third of their pay would be withheld by their US employers and repaid to them by a US consulate in Mexico to "provide the essential incentive for workers to return home once their employment ended." UFW President Arturo Rodriguez said Lungren's proposal would "worsen the already miserable conditions plaguing most farm workers." According to Rodriguez, "In most farming regions there are two or more farm workers for every job. Lungren's guest worker program is based on the agribusiness myth that there is a shortage of farm workers.... agribusiness' chief farm labor strategy over the years has been maintaining a surplus supply of labor." Most discussions of farm labor shortages make no reference to wages, which is curious because farmers who sell peaches or grapes are familiar with the effects of supply and demand on prices. For most labor-intensive commodities, demand is fairly stable in the short term, but fluctuations in supply can cause sharp swings in the prices farmers receive. SSN Matching. Most estimates of the percentage of illegal farm workers cited in the press are in the 50 percent to 70 percent range, based on reports received from the Social Security Administration on "bad" social security numbers submitted by farmers. This is consistent with the 37 percent illegal alien share of the total farm work force reported by the NAWS; about 60 percent of California farm workers are seasonal therefore 50 percent illegal seasonal workers (60 x 50 =30 percent illegal), plus 20 percent of regular or year-round workers (40 x20 =8), would suggest an overall 38 percent illegal work force. In Idaho, the Idaho Grower Shippers Association is exploring the use of H-2B workers in potato packing warehouses after the SSA matching and INS inspections indicated significant unauthorized workers. According to reports, if there are a significant number of SSN-name discrepancies, the INS conducts an inspection. David Pace, "Chambliss bill would allow unlimited use of foreign farm workers," Associated Press, November 18, 1997. Lynn Graebner, "Farmers face shortage of laborers," Sacramento Business Journal, November 3, 1997. Steven A. Capps, "Lungren backs guest works," Sacramento Bee, October 17, 1997. GAO Issues H-2A Report (posted 2/27/98) The GAO issued a report on December 31, 1997 that concluded there are "no national agricultural labor shortage at this time" and that "A sudden, widespread farm labor shortage requiring the importation of large numbers of foreign workers is unlikely to occur in the near future." The report was prompted by farm employers who fear that stepped-up INS work-site enforcement could lead to farm labor shortages. Farmers testified that many of their workers presented false documents to obtain employment and that anti-discrimination laws prevent them from questioning workers closely about the authenticity of those documents. A national farm worker survey, NAWS, estimates that about 38 percent of the nation's roughly two million crop workers were unauthorized in 1995-96. The GAO report concluded that stepped-up INS enforcement is unlikely to lead to farm labor shortages; (1) because the INS is concentrating on removing criminal aliens etc., not inspecting agricultural work places (700 unauthorized farm workers were removed from farm work places in FY97; they were four percent of the 17,500 workers on the INS-inspected farms) and, (2) there seems to be an ample supply of farm workers--11 of 20 large US agricultural counties in June 1997, had unemployment rates more than twice the US rate of 5.2 percent. INS Enforcement. The INS's Office of Investigations has primary responsibility for enforcing employer sanctions laws, as well as identifying and deporting criminal aliens, and deterring fraud and smuggling. In FY95, the Border Patrol was removed from most work-site inspections, and in FY96 accounted for less than five percent of the INS staff years devoted to sanctions enforcement. Only 224, or 20 percent, of the 1,170 staff years available for INS investigations are devoted to employer-sanctions enforcement, and only five percent, or 230, of the 4,600 employer inspections in FY96 were of agricultural employers, including landscapers and dog kennels. The INS targets employers in 15 sectors known to employ unauthorized workers, including two agricultural sectors-farms and labor contractors. Within these sectors, INS focuses on "abusive" employers. INS notes that it is expensive and time-consuming to enforce employer sanctions laws in rural areas because farms are often distant from the agents' offices and because of the search warrant requirement. The INS under IRCA in 1986 was required to obtain search warrants to check for unauthorized workers in open fields, which makes it time-consuming and expensive to develop evidence that a farm is employing unauthorized workers. Some farms spill into several counties, requiring INS to obtain multiple search warrants. Some employers try to comply with work authorization requirements, but are frustrated by false documents. The GAO concluded that there is little prospect that the INS will soon develop more effective work eligibility verification programs. H-2A Administration. In FY96, 1,813 US farm employers imported about 15,000 foreign workers under the H-2A program. Two-thirds of the H-2A workers were requested by farm employers in six states: North Carolina, Virginia, New York, Kentucky, Connecticut, and New Hampshire. The North Carolina Growers Association, which supplies 800 tobacco farmers with workers, requested a third of the H-2A workers. The number of H-2A workers jumped sharply between 1996 and 1997 in North Carolina, Kentucky and New Hampshire, while decreasing sharply in New York. In 1997, most H-2A workers were requested for more than six months, and a third were requested for ten or more months. The GAO report provides an excellent review of the application procedure for obtaining H-2A workers. The process begins with an employer application to one of 10 regional DOL offices, with a copy sent to the local Employment Service office at least 60 days before the need date (the time the employer says that workers will be needed to fill jobs for which employers believe no US workers will be available.) Each employer application includes a request for H-2A workers and an offer of employment to US workers that includes free housing, repayment of the cost of transportation to the work site if the worker stays for half or more of the season, and guaranteed wages for the first week of work. The employer's H-2A application/offer to US workers is entered into the ES interstate job clearance system, which means that: (1) ES offices throughout the US and Puerto Rico are advised about the need for workers and, (2) DOL must inspect the housing being offered to US/H-2A workers to ensure that it complies with minimum standards. In 1996/97, DOL approved 99 percent of the 3,700 US employer requests for H-2A workers, and certified that H-2A workers could be employed to fill 99 percent of the 30,000 jobs that US employers believed could not be filled with US workers: US employers must pay a certification fee of $100 per application plus $10 per H-2A worker requested, up to a maximum $1,000; these fees are much less than DOL certification costs. The INS then stamps the DOL-approved H-2A requests-without the names of the foreign workers-and sends them to US consulates abroad. About 68 percent of H-2A workers in FY96 were Mexicans and 95 percent of the H-2A visas were issued by the Department of State in Monterrey and Hermosillo, Mexico. The H-2A workers receive visas, enter the US and go to the US employers who requested them. The GAO report criticized DOL's administration of the H-2A program. DOL's guide to the H-2A program was found to be outdated and wrong in places, so that both employers and workers sometimes had false information. For example, GAO said that both farmers and worker advocates in California reported that farm workers could not be housed in tents, but federal and state officials said that tents have been and are certified as acceptable farm worker housing under certain conditions. GAO noted that the H-2A program provides a number of worker protection standards that are very difficult to enforce. Most labor law enforcement depends on complaints; in FY96, DOL received no complaints from any workers employed on farms that requested H-2A workers. One reason may be that most ES offices do not refer workers to employers who have requested H-2A workers, since they "know" that the employer wants the H-2A foreign workers. GAO recommended a series of administrative changes, including transferring from the INS/Attorney General to DOL the final authority to approve employer applications, the establishment within DOL of systems to ensure that applications are acted upon in a timely and consistent manner in regional offices, and the extension of a guaranteed first week's wages from US workers to H-2A workers. GAO also recommended that US employers be permitted to ask for workers 45 days before their need date, down from the current 60 days and that DOL make a final determination on employer requests seven days before the employer-specified need date, down from the current 20 days. Reactions. Perhaps the most interesting part of the GAO report are the sharply different comments of DOL (seven pages) and USDA (21 pages). They suggest clear differences of opinion over whether there is a farm labor shortage, over the responsibility of farm employers to find US farm workers and whether a guest worker program is desirable. DOL's comments note that the falling wage and high unemployment evidence supports the conclusion that there is a surplus of farm workers, not a shortage, and that welfare reform promises to add to the US farm labor supply (pages 114-115). USDA says unemployment rates cannot be used to indicate the availability of farm workers: "Unemployment rates do not indicate whether workers are willing to accept particular jobs at the time and place needed." (page 124) Indeed, USDA says that "widespread unemployment" among farm workers is necessary to satisfy peak farm labor needs. "The unpleasant fact is that, if there are sufficient workers available to meet peak agricultural labor needs, there will necessarily be widespread unemployment among agricultural workers during most of the year." (page 128). DOL's comments emphasize that farm employers should be more like nonfarm employers, planning their labor needs and recruitment strategies well in advance; thinking about how they will get a labor force when they make decisions about what to plant. USDA says that farmers are planting crops today in a manner that will require hand harvesting in five years despite fears of labor shortages because farmers are making the "rational assumption" that the program that Congress enacted 50 years ago to assure the agricultural industry an adequate and affordable labor supply (or that program's successor) will meet agricultural employers' needs." (page 128). In 1947, most legal foreign farm workers were admitted under the Bracero program. DOL concludes that the "real challenge ...is not to legalize the flow of migrant labor into the US agricultural sector." USDA argues that "the employment of legal workers under controlled conditions that protect US workers is preferable to the employment of illegal aliens." (page 123). The executive director of the North Carolina Growers Association acknowledged that farm jobs are the port of entry into the US: "When the INS comes to town, they visit the poultry plant, or the textile plant, or the contractors, and take away illegal aliens. The workers then leave agriculture to take the jobs vacated in the plants." Rep. Howard Berman (D-CA) said that the GAO report "totally deflates the political effort ... to enact another Bracero program." National Council of Agricultural Employers economist James Holt says that the GAO report is flawed because it assumes no more INS work-site enforcement. Stephanie Simon, "Growers Say U.S. Wrong, Labor Is in Short Supply," Los Angeles Times, January 5, 1998. Steven Greenhouse, "GAO Sees No Worker Shortage, Dampening Efforts to Import Farm Labor," New York Times, December 28, 1997. General Accounting Office. 1997. H-2A Guestworker Program: Changes could improve services to employer sand better protect workers. Washington DC. GAO/HEHS 98-20. December. www.gao.gov. Martha Groves, "Window of Opportunity: Critics Say It's Merely Migrant Exploitation," Los Angeles Times, October 2, 1997. Workers Compensation, Pesticides (posted 2/27/98) Workers compensation programs are federal- and state-operated systems for compensating workers who are injured or develop an incapacitating disease on the job regardless of who was at fault in causing the injury. In exchange for a medical benefits and schedule of wage-loss benefits, workers are prohibited from suing employers for additional damages. If a worker is injured and cannot work, most states provide benefits that are two-thirds of previous wages, subject to a maximum payment. In most states, an injured worker unable to return to work receives benefits until retirement or death. California has had a workers compensation program since 1914, and its state Rating Bureau sets premiums for 430 types of work or "industries." The premium, expressed as a percentage of each $100 of payroll (excluding overtime pay), reflects the type of work and the employer's experience with injuries over the past three years. For example, a typical manual work rating is $12 per $100 of wages paid, so an average experience rating of 100 means that the employer pays $12 in workers compensation premiums for each $100 of wages. California spends about $8 billion per year on its workers' compensation system, and made major changes in the system in 1989 and 1993. According to a Rand study released in Fall 1997, California offers low benefits to the 100,000 to 200,000 workers who each year suffer permanently disabling injuries; workers on average lose 40 percent in wages, but they recoup less than 20 percent of lost wages in benefits. Workers who are injured, regardless of their immigration status, have a legal right to file a worker's compensation claim in California, but many unauthorized workers do not know the name of their employers. Many employers accuse farm workers of abusing the workers compensation program, hurting themselves playing soccer on weekends, and then reporting to work and complaining of injuries on Monday morning. Most farm workers do not have employer-paid health insurance to cover non-work related injuries. Farm worker advocates, on the other hand, argue that many farm employers discourage workers, especially those who are unauthorized, from filing workers compensation claims. A study by the California Institute for Rural Studies found that the number of injuries and deaths reported by farm workers fell from 44,400 in 1987 to 28,300 in 1994, while overall workers compensation claims in California fell from 338,100 to 250,300. CIRS attributed the fall in farm worker injuries to SB 198, a 1991 state law that mandated worker safety training and to insurance company safety checks; others suggest that employers find it easier to discourage claims as the percentage of unauthorized workers rises. A UC-Davis survey of 1,174 adults and 907 children who lived at least part of each year in six migrant farm worker camps within one hour of Davis found that 11 percent of the men and nine percent of the women reported injuries in 1997. In 1996, some 660 farm workers were killed at work, a rate of 19 deaths per 100,000 workers, compared with five deaths per 100,000 workers in the private US economy as a whole. Pesticides. In 1996, the Food Quality Protection Act updated pesticide legislation and ordered the Environmental Protection Agency to apply an additional margin of safety of 10 times the limits it now sets on cumulative exposure to traces of the chemicals if the EPA lacks data on how pesticides affect children. The law said that the EPA "may use a different margin of safety for the pesticide chemical only if, on the basis of reliable data, such margin will fully protect infants and children." In many cases, the EPA decided that existing tests and exposure data are usually reliable enough to avoid the 10-fold margin, which has angered advocates who thought the new legislation would put the burden of proof on chemicals for which data were incomplete. The Federal Worker Protection Standard (WPS) requires employers to train workers exposed to pesticides at least once every five years in pesticide safety; pesticide handlers must be retrained at least once each year. Fieldworkers are banned from fields sprayed with pesticides for at least four hours. There are then restricted entry intervals that vary by pesticide. California WPS can be found at: http://www.cdpr.ca.gov The number of pesticide-related incidents in Fresno county jumped from 95 in 1994 to 198 in 1995; statewide, the number rose from 1332 to 1593, although only about a third of the statewide total were in agricultural areas. The ILO held a conference on safety in agriculture, and reported that 170,000 persons world wide were killed in agriculture in 1996, twice the rate of fatal work-related accidents as in the nonfarm sector. According to the ILO, 1.3 billion persons-half of the world's labor force-are employed in agriculture around the world, and each year "several million" suffer injuries. The three percent of the US labor force engaged in agriculture accounted for eight percent of work-related accidents. In Italy, the 10 percent of the work force engaged in agriculture accounts for 20 percent of work-related accidents. A study of the health risks associated with exposure to radiation found that the average American has his life expectancy reduced about 18 days because of radiation, but the average person working in agriculture has a reduced life expectancy of 320 days, and the average person working in construction has a reduced life expectancy of 227 days. Felicia Cousart, "Reports of illness linked to pesticides double," Fresno Bee, December 31, 1997. John Cushman, "Environmental Agency Under Fire on Safety Rules," New York Times, December 29, 1997. California: Wages, Data and UI (posted 2/27/98) The federal minimum wage increased from $4.75 to $5.15 on September 1, 1997. The California minimum wage, currently $5, will increase to $5.75 on March 1, 1998. California's Industrial Welfare Commission on April 11, 1997 eliminated the requirement that non-farm California employers pay overtime or 1.5 times base wages after eight hours of work per day effective January 1, 1998; employers must pay overtime wages only after 40 hours of work a week. A survey released in December found that three-fourths of all employers plan to abandon daily overtime. Employers must still pay overtime wages if workers are employed more than 40 hours per week. After approving the end of daily overtime, the IWC was defunded by the California Legislature. Farm employers, those covered by IWC orders 8 (packing farm products not produced by the employer), 13 (packing farm products produced by the employer), and 14 (field workers), are NOT covered by the elimination of daily overtime. In California agriculture, employers must pay 1.5 times the usual wage for hours worked after 10 hours on any day. The Social Security Administration is requiring employers who issue 250 or more W-2 forms in one tax year to file the names, SSNs, and earnings of their employees on computer disks and tapes. SSNs and names are then checked against the SSA database, and employers reporting 70 percent or more "bad" names or numbers-SSNs not issued by the SSA, or the SSN does not match the name SSA has on file-are having their disks returned without processing. Employers can be fined $50 per W-2 form with bad SSN/name data, but such fines are not now being levied. Social security taxes are 7.65 percent for both employees and employers, i.e. 15.3 percent, up to $68,400. Wages. The Farm Employers Labor Service released its 1997 wage survey. It reported that the average hourly wage of general farm workers II on 282 farms was $5.61, with a range of $4.75 to $8.50, and a standard deviation of $0.76 an hour. General farm workers I on 266 farms had an average hourly wage of $6.28, with a range of $4.95 to $10.50, and a standard deviation of $1.06 an hour. Other job categories with more than 200 employer responses included 200 employers reporting on tractor driver II-their average hourly wage of $6.57, a range of $4.95 to $12, with a standard deviation of $1.19. Some 233 employers reported on tractor driver I; they had an average hourly wage of $7.37, a range of $5 to $15, with a standard deviation of $1.62. Some 220 employers reported paying an average hourly wages of $8.59 to foremen, a range of $5.50 to $17, with a standard deviation of $2.24. The most common fringe benefit was a bonus, provided to two-thirds of the year-round workers and 27 percent of the seasonal workers. About 63 percent of year round, but only seven percent of seasonal workers, received vacation pay; 47 percent of year round-workers, and 10 percent of seasonal workers, received holiday pay for an average six and five days, respectively. Some form of heath insurance was offered to 26 percent of year-round employees and their dependents, and to two percent of the seasonal workers and their dependents. Employers contributed to the cost of housing about one-third of their year-round workers and 12 percent of their seasonal workers. Data. California's Employment Development Department has been conducting a Current Employment Statistics for Agriculture program in which about 4,000 agricultural employers-the 14 percent of the 28,600 farm employers in the state who account for about 40 percent of the jobs in agriculture-each month report the total number of employees on their payrolls, and the gross weekly pay and gross weekly hours of work of production workers. The average hourly earnings and hours or work data for production workers data is then generated for six regions of California and for four-digit SIC codes, for example, berry workers or citrus workers. Beginning in January 1998, the EDD and the California office of the National Agricultural Statistics Service unit have cooperated to conduct the California Agricultural Labor Survey, which reports the employment and earnings of production workers, for example, excluding office staff or those involved in legal or personnel activities on the farm. In 1998, some 5,000 farms will be asked to provide this employment and wage information in January, April, July, and October, and 4,000 will be asked to provide this information in other months. USDA will publish the information in its quarterly Farm Labor bulletin (www.nass.usda.gov/ca); EDD will make its data available in its monthly CES Ag Bulletin, which has not been issued since January 1997; http://www.calmis.cahwnet.gov The new survey will provide data on employment and earnings for the pay period-usually one week-that includes the 12th of the month for fieldwokers, livestock workers, field and livestock workers combined, and all hired workers-data on supervisors' earnings and earnings by the method in which farm workers are paid-hourly or salary, piecerate, or a combination-will no longer be published. Employers are asked how many of ALL their production workers are seasonal, defined as employed less than 150 days on the responding farm, and how many are migrant, defined as being away from their usual residence overnight to do farm work on the responding farm. Data are collected on the county in which the respondent operates, not the headquarters of the respondent (some of California's largest farming operations are headquartered in San Francisco and Los Angeles). The sampling frame draws from both the list of California employers with agricultural SIC codes who pay UI taxes and a USDA list of farm employers and listing of farm land parcels (list/area frame). In 1997 experimentation, only 30 percent of the farms from which information was requested provided data, down from 70 percent in the previous EDD-only survey; the decline is attributed to both the larger sample size and the fact that many new employers were asked for information. Unemployment Insurance. DOL is pressing states to make it easier for part-time jobless workers and those who quit their jobs to obtain UI benefits. Following recommendations of an Advisory Council on Unemployment Compensation, DOL proposes that states permit part-time workers, who are 18 percent of the US labor force, collect UI when they lose their jobs. DOL also proposes that workers who quit their jobs for good cause, including to relocate with a spouse, should be able to collect UI benefits. States must have UI systems that satisfy minimum federal standards. During the early 1980s recession, many state UI funds were depleted, so states tightened eligibility provisions. As a result, the percentage of the unemployed collecting UI benefits fell from 58 percent to 36 percent in 1996. On March 20, 1997, California's EDD released "Report 96A on Unemployment Insurance Weeks Compensated by Industry in 1996." In 1996, some 18.5 million weeks of benefits worth $2.7 billion were paid to unemployed workers. For more information, call (916) 654-9292. In most industries, the number of weeks of UI benefits paid fell between 1995 and 1996, reflecting the economic recovery in California. For example, the number of UI weeks compensated fell eight percent in manufacturing and two percent in services. Agriculture accounted for about 14 percent of weeks of UI benefits in 1996 and 11 percent of UI benefit payments. The UI system paid 2.7 million weeks of benefits to agricultural workers (SIC 01, 02, and 07-09) in both 1995 and 1996, down from three million weeks of benefits in 1994. The total UI benefits paid to agricultural workers in 1996 were $296 million. "EDD Report 96A" provides detail by industry and area. Statewide, crop production and agricultural services each accounted for 1.3 million weeks of UI benefits paid, but crop workers received $150 million in UI benefit payments, compared with $137 million for agricultural service workers. Farm labor contractors and crew leaders (SIC 0761) accounted for 671,000 weeks of UI benefits worth $68 million-an average weekly UI payment of $101. UI data are available by Labor Market Area and selected counties. In the Fresno LMA (all of Fresno county), agriculture accounted for 41 percent of the 812,000 weeks of UI benefits paid and 37 percent of the $98 million in benefits paid, with FLCs accounting for 12 percent of the county's weeks of UI benefits, and 10 percent of the weeks paid. In the Modesto LMA (all of Stanislaus county), agriculture accounted for 18 percent of the 524,000 weeks of UI benefits paid and 14 percent of the $72 million in benefits paid. In the Salinas-Seaside-Monterey LMA (all of Monterey county), agriculture accounted for 47 percent of the 401,000 weeks of UI benefits paid and 44 percent of the $54 million in benefits paid. In San Benito county, agriculture accounted for 31 percent of the 48,000 weeks of UI benefits paid and 17 percent of the $7 million in benefits paid. EDD Report 352. 1997. "Wages, Benefits, Contributions, and Employment by Industry." August 15. This annual report presents administrative data that employers provide to EDD when they pay their Unemployment Insurance taxes. These data show that crop and agricultural service employers pay only about half as much in UI taxes as their unemployed workers draw in benefits. In calendar year 1996, 922,000 California reporting units paid $331 billion in wages to 10.6 million employees. Employers pay UI taxes on the first $7,000 of annual wages for an employee, so taxable wages of $83 billion are only 25 percent of total wages paid in 1996. Unemployed workers received $2.8 billion in UI benefits in 1996. Some of the most interesting data are those for individual industries. The 37,000 agricultural reporting units paid $7.4 billion to an average 496,000 covered employees, or an average $14,860. Agricultural employers contributed $167 million in UI taxes, but unemployed workers received almost twice as much in UI benefits, $305 million. The report provides data by two, three and selected four-digit SIC codes. The 17,100 crop reporting units paid $3.2 billion in total wages to an average 206,0000 covered employees, and unemployed crop workers drew $155 million, twice crop employer contributions of $78 million. The 4,200 livestock reporting units paid $482 million in total wages to an average 25,300 covered employees and unemployed livestock workers drew $4.9 million, less than livestock employer contributions of $6.8 million. The 14,800 agricultural service reporting units paid $3.6 billion in total wages to an average 261,0000 covered employees and unemployed agricultural service workers drew $141 million, almost twice agricultural service employer contributions of $81 million. The only three-digit information published is for 1,413 farm labor contractors and farm management services, SIC 076. They paid $1.1 billion in total wages to an average 127,200 covered employees; unemployed workers drew $77 million, or twice employer contributions of $37 million. EDD published four-digit SIC information for 1,049 farm labor contractor reporting units in 1996. They paid $888 million in total wages to an average 116,000 covered employees, or an average $7,600 per covered job; unemployed workers drew $70 million in UI benefits, more than twice employer contributions of $33 million. Assistance Programs (posted 2/27/98) The federal government spends over $600 million annually to assist migrant and seasonal farm workers and their children. Most of this federal MSFW funding--$624 million in FY98--goes to the Big Four programs-Migrant Education ($305.5 million in FY97, $305.5 million in FY98); JTPA-402 programs ($69.3 million in FY97, $71 million in FY98); Migrant Health ($72 million in FY97, $74 million in FY98--Migrant Health gets nine percent of the consolidated health center appropriation); and Migrant Head Start ($159 million in FY97, $174 million in FY98 --MHS gets four percent of the Head Start budget). In addition, a number of smaller federal programs assist farm workers and their children, including USDA's Section 516 Farm Labor Housing Grants ($10 million in FY96), the Migrant Even Start program ($3 million in FY97, and $3.7 million in FY98--MES gets three percent of the Even Start budget), the High School Equivalency Program or HEP ($7.4 million in FY97; $7.6 million in FY98), the College Assistance Migrant Program or CAMP ($2 million in FY97; $2.1 million in FY98), and Migrant Vocational Rehabilitation ($1.8 million in FY97; $2.4 million in FY98). Eligible farm workers also receive benefits under general welfare programs, including Bilingual and Immigrant Education, $262 million in FY97 and $354 million in FY98, and Refugee and Entrant Assistance, $412 million in FY97 and $415 million in FY98. MSFWs also receive assistance under general federal welfare programs, including Food Stamps and the Supplemental Food Program for Women, Infants, and Children (WIC). 402 Job Training. Section 402 of the Job Training Partnership Act funds states and nonprofit organizations to provide training and supportive services to migrant and seasonal farm workers. The Senate appropriations language says that "applicants for funding under JPTA 402 must demonstrate a prior existing capacity to specifically serve the employment and training needs of migrant and seasonal farmworkers." The Department of Labor in 1997 announced a new formula to distribute Job Training Partnership Act 402 funds that assist farm workers to states. Under the current formula, each state receives a share of the total allocation that corresponds to that state's share of economically disadvantaged farm workers according to the 1990 Census of Population: California in FY97 received $14.2 million in 402 funds in FY96; Texas, $5.8 million; Florida, $4.5 million; North Carolina and Puerto Rico, $2.9 million each; New York, $1.8 million; Georgia and Washington, $1.7 million each; Arizona, $1.5 million; Michigan and Illinois, $1.4 million; Kentucky and Iowa, $1.3 million each; and Minnesota, Wisconsin and Pennsylvania, $1.2 million each. The revised formula would split each state's share of 402 funds into two parts. Half of the formula would be based on each state's share of eligible farm workers in the 1990 Census and the other half would be based on the state's share of standardized hours of work-farm labor expenditures in the 1992 Census of Agriculture divided by average annual hourly wages for the state/region reported in the 1992 USDA's Farm Labor Survey. If the revised allocation formula is implemented by DOL, 402 funds would shift from California, Texas and Florida to states such as Colorado, Wisconsin, Michigan and Pennsylvania. In some cases, farm labor expenditures in these states are wages paid to family members in order to shift farm income into lower tax brackets. After meeting with concerned 402 grantees, DOL said that it would use NAWS data only for the states in which NAWS data are available. NAWS interviews about 2,500 farm workers in 228 counties in 28 states each year. Almost half of the workers seeking 402 services had incomes of less than $2,500 in the year before seeking services and most were placed in jobs whose hourly wages promised significantly higher annual earnings. According to 402 grantees, many potential clients for employment and training services are disqualified because they are not legal residents who have registered for the selective service as required. Many of the East Coast 402 service providers are requiring their staff to attain "occupational fluency" in Spanish to serve the growing number of Spanish-speaking farm workers. Telamon, for example, requires employees to be able to understand enough Spanish to complete intake/eligibility forms. Service providers in Maryland, North Carolina and South Carolina reportedly pay costs for current employees to learn Spanish and provide one hour of paid time each day for language learning. According to Association of Farmworker Opportunity Programs, about half of the federal 402 funds are used to provide classroom training;, 20 percent are used for administration and 20 percent each for on-the-job training and work experience programs. AFOP reported that its farm worker data base included 51,200 farm workers at the end of July 1997. DOL Standardized Participant Information Data on farm workers trained and placed by 402 programs show that most were placed in nonfarm jobs, where they had an average entry-level wage of $6.21 per hour. It appears that most of those who enroll in 402 training programs are not taken directly from the fields--82 percent were unemployed or not in the labor force, 60 percent had good English, and 61 percent had earnings of less than $2500 in the year prior to 402 training. Almost 60 percent of those who went through a 402 program, at an average cost of $6250, were placed in jobs. According to the DOL data, 402 programs serve few migrants. One observer noted that, if 420 programs continue to serve mostly settled ex-farm workers, it may be difficult to justify a national farm worker training program in the future. The city of El Paso funds a center for farm workers who assemble at 2 or 3 am to be bused by contractors to New Mexico onion and chile fields, but farm workers interviewed in mid-July say that they sleep on downtown El Paso streets because they are denied entry. The Centro de los Trabajadores Agricolas Fronterizos was opened in February 1995, with beds for 120 people, but it has only 40 on a typical night. The Center for Employment Training, a San Jose-based assistance center that has expanded throughout the US, operating 30 centers in a dozen states, including 19 in California, is $2 million in debt. The centers outside California, where CET is not well known, are operating at a deficit. CET, which operates under a $38 million annual budget, has trained and obtained jobs for some 70,000 workers, at least half of them Latino. In California, the Employment Service is paying to install computers in 402 offices so that they have direct links to statewide job availability. Migrant Head Start. The Redlands Christian Migrant Association operates a 107-child Head Start program in Dade City for the pre-school children of farm workers on a $600,000 per year budget; 60 children attend at no cost and the other 47 pay $16 per month. Redlands operates 80 child-care centers across Florida. Wendell N. Rollason, founder of the Redlands Christian Migrant Association in Dade County in 1965, died in January. There are an estimated 10,000 to 15,000 farm workers in Dade county. Migrant Education. The Migrant Education Program (MEP), begun in 1965, currently provides $305 million in supplemental educational and other services to the children aged three to 21 who crossed school district lines with their families within the past three years as the parents sought farm jobs. The need for the program is premised on the assumption that one or more moves with parents who migrate to fill farm jobs will disrupt the child's schooling. MEP has identified about 800,000 children nationwide who satisfy these criteria, including 110,000 in Texas. Los Angeles county has 12,000 MEP children. MEP funds are distributed to states on the basis of the number of eligible children identified, not served. In addition to hiring recruiters to locate eligible children, the MEP program has established a toll-free number for parents to call to determine if their children are eligible for MEP services: (800) 234-8848. The Los Angeles Times on November 27, 1997 reported "according to recent studies" that the "average migrant student will attend 24 schools by the time he or she reaches fifth grade," and that half of the 750,000 children ages three to 22 in households headed by migrant farm workers do not graduate from high school. MEP says that, in 1965, 90 percent of migrant children did not finish high school. The Dade County schools' MEP was awarded a $600,000 federal grant so that 100 of the 1,000 migrant families with school-age children who spend part of each year in Dade county can be given portable computer hookups and toll-free telephone numbers to stay in touch with home-based teachers while traveling. MEP is distributing $3 million a year over the next five years to use technology to assist migrant farm worker children. The Washington Post on August 4, 1997 ran several stories on MEP in the Washington DC area; according to the articles, there are 700,000 MEP-eligible children nationwide. Since the early 1980s, the MEP children in the Delmarva area have changed from Black and white to Hispanic; about 80 percent of the MEP children in Maryland in 1997 are Hispanic, as are 96 percent in Virginia. One story profiled a US citizen child in a family of US citizens who speaks English and switches between schools in Immokalee, Florida and Greensboro, Maryland. Schools use a variety of methods to provide supplemental services to MEP children, including importing teachers from Mexico and Puerto Rico to Pennsylvania each summer, handing out correspondence learning materials under the Portable Assisted Study Sequence program to children who do not receive services from local schools, and transferring records from one school attended by an MEP child to another. The Pasco school district in Dade City, Florida had 560 migrant children in 1996-97--most in East Pasco-but only 27 who participated in the Migrant Education Program. Utah operates a summer migrant education program for 2,000 children, including 900 in Ogden. The Detroit Public School system has operated a Spanish-English Summer Migrant Program since 1981, and in 1997 it is using at least one teacher from Jalisco, Mexico. The US Department of Education in June awarded $3.4 million in grants to nonprofit groups in Florida, Kentucky, Illinois, Michigan, North Carolina and Oregon to encourage academic achievement among migrant students through the Internet, so that "High school students who perform agricultural work in more than one state during the harvest months will be able to accumulate the credits they need to graduate by continuing their coursework at home over the Internet." The US Department of Education also funds the College Assistance Migrant Program (CAMP) and the High School Equivalency Program (HEP), programs that "actively recruit" migrant children for high-school and college programs and provide "targeted counseling services and the additional stipends" while they are in school. HEP provides discretionary grants to institutions of higher education to provide academic and support services to eligible migrant or seasonal farm workers or specified family members, generally persons 16 and older who do not have a high school diploma. According to HEP, almost 70 percent of those who begin HEP programs achieve high school equivalent education. CAMP makes discretionary grants to institutions of higher education to provide support for eligible migrant children for the first year of college. About 12,300 children were enrolled in HEP and 4,500 in CAMP in 1996. Health. Stockton-based Su Salud got into a dispute with its landlord before opening its permanent facility to screen indigent farm workers and immigrants and refer them for treatment. Su Salud had been a once-a-year screening event, and its success led to donations that permitted Su Salud to open a year-round office. However, the landlord charged that Su Salud rented the property as an administrative office but intended to use it as a clinic. The California Department of Corporations announced in September 1997 that it would examine health care plans that offer California workers HMO coverage in Mexico. Mexican-based HMO plans cover 10,000 Mexican workers employed in California, but they are not regulated by Mexico or California. Systemas Medicos Nacionales S.A., for example, offers HMO coverage to US employers of Mexican nationals employed in the San Diego area. The typical Mexican HMO is about half the cost of a US health plan for individual coverage and about a third the cost of a US-based plan for family coverage. Housing. The Housing Assistance Council released a new report, Housing for Families and Unaccompanied Migrant Farmworkers, that concluded that unaccompanied farmworkers prefer to live in employer-provided housing, even if it is substandard, to save on rent and transportation costs. Many farm workers lack the cash to pay security deposits, first and last month's rent, and other fees associated with the usual housing market. According to the report, a disproportionate amount of USDA Section 514 and 516 housing funds are used to construct housing for year-round workers. California has a farm worker housing fund that now has $4 million available for nonprofit organizations to build or rehabilitate farm worker housing. In addition, there are moves underway to provide up to $10 million in tax credits for farmers who build or rehabilitate farm worker housing. The Kern County Grand Jury released a report in November 1997 that cited Arvin for having an overloaded sewer system because of people living in garages and other unapproved housing; the total population is larger than the sewer capacity. Thinking about Assistance. Many commentaries on helping farm workers use as a point of departure a 1993 book by Martin and Martin, "The Endless Quest," which was prepared to assess the extent of cooperation between federal programs that spend $600 million annually, equivalent to about 10 percent of what migrant and seasonal farm workers earn, to help remedy the effects of low farm earnings on MSFWs and their children. "The Endless Quest" concluded that MSFW assistance programs can lift individual farm workers and their children out of agriculture and poverty, but so long as immigration continues to bring more vulnerable workers into the farm work force, public programs that assist farm workers and their children are engaged "an endless quest." Instead of helping farm workers with tax funds after their work in the farm labor market leaves them poor, the book reviewed several options for helping farm workers at the work place so that they would not wind up poor and in need of help, including the market solution of unions, higher wages and stepped up regulation of labor laws and immigration controls. The key to the farm labor market is the number and characteristics of farm workers. If there were not an excess supply of farm workers, they would have a better chance of forming effective unions and growers would be more likely to pay higher wages. The flexibility in the farm labor market tends to be on the demand side; farmers find ways to get farm work done with fewer people at higher wages. When wages rise, there is also an incentive to develop labor aids that make farm work easier, so that existing farm workers can work longer. The relationship between the supply of farm labor and farm wages is mirrored in the rise and fall of the UFW. It is no accident that the UFW burst onto the national scene in 1966 with a 40 percent one-year wage increase, raising wages for picking grapes from $1.25 per hour to $1.75 per hour. By 1970, most grape workers were employed under UFW contracts. Cesar Chavez was a charismatic leader and consumers were willing to boycott grapes and wines in the civil rights era, but it should be remembered that the Bracero program ended in 1964 and that only 139,000 unauthorized aliens were apprehended in the US in 1966, up from 87,000 in 1964 [Braceros - men who worked with their arms (brazos) with the strength of steel (acero)]. The demise of the UFW is often traced to the vegetable strikes of 1979-80, when the UFW again demanded one-year wage increases of 40 percent, which would have raised lettuce harvesters' minimum wages from $3.75 to $5.25 an hour. Apprehensions of unauthorized aliens were 1.1 million in 1979 and between 900,000 and one million in 1980-82. Growers had alternatives to UFW workers, and they often turned to FLCs to recruit unauthorized workers and operate despite strikes. Companies such as Sun Harvest signed contracts that increased wages by 40 percent and then went out of business. The UFW presence in the vegetable industry almost disappeared. The US government holds the key to regulating the size and characteristics of the farm work force. There have been many proposals to make the federal government the employer of US farm workers, including the 1976 proposal of Bissell that would have the federal government create an agency (a federal hiring hall) that would be the employer of record for US farm workers. Even in the US defense industry, most employees are hired by private companies subject to US private sector labor laws. There is no easy answer to farm worker poverty. Many advocates would like immigrants to have easy access to the US labor market, and simultaneously have high wages and good benefits for farm workers. But economics forces a choice between these competing goals. Fred Alvarez, "Schools offer help to students who make winter exodus to Mexico," Los Angeles Times, December 25, 1997. Mike Clary, "For migrants' educations, a new degree of stability," Los Angeles Times, November 27, 1997. Marie Arana-Ward, "For Children of the Fields, Education Is Elusive," Washington Post, August 4, 1997. Eduardo Montes, "El Paso farmworker center a difficult place to enter," Austin American-Statesman, July 18, 1997. Rosenbaum, Rene. 1997. Farmworker Futures. Nexo. Vol 6, No 1. Fall. Martin, Philip L. and David Martin. 1993. The Endless Quest: Helping America's Farm Workers. Boulder: Westview Press. ALRB: Access, Reinstating Illegals (posted 2/27/98) Ivonne Ramos Richardson was confirmed for another five-year term as a member of the ALRB. Trice Harvey was not confirmed; he left the Board, and was replaced by John Smith from the Office of Administrative Law, giving the board five members. ALRB Chairman Mike Stoker announced plans to run for Congress from Santa Barbara, which prompted the UFW to call for him to resign from the ALRB, arguing that his fund-raising activities during the campaign could interfere with his ability to fairly decide issues before the ALRB. Stoker has withdrawn from the race and will remain ALRB chair. Access. The ALRB held hearings in November and December at which employers and some workers testified against the access regulation. The access regulation, adopted by the first Board as an emergency measure in 1975, established an automatic but limited procedure through which non-employee union organizers could enter farm employer property to talk to workers for up to three hours per day about their right to join a union. The organizers were allowed to talk to workers before work, during lunch, and after work-for up to four 30-day periods a year. NLRB regulations do not grant union organizers automatic access to employer property. Instead the NLRB presumes that unions have ways to talk to workers outside the work place. In order to enter the work place and talk to workers, nonfarm unions must petition the NLRB to show that they have no other way to talk to employees, as occurs in isolated resorts or on ships. The NLRB grants access to union organizers on a case-by-case basis. The ALRB justified the automatic but limited access regulation in 1975 by asserting that, in most cases, farm worker unions would successfully petition for access to workers on farms. The first ALRB simply made access a presumptive union right. The UFW qualified Proposition 14 on the 1976 ballot to put the ALRA and the access regulation into the state's constitution; Prop. 14 failed, but the California Supreme Court upheld the access rule. Grower and worker testimony in 1997 pointed out that the UFW has alternative ways to communicate with farm workers, so that it does not have to take access to workers on employer property. The National Farmworkers Service Center, a UFW affiliate, operates radio stations in Bakersfield, Visalia, and Phoenix. Growers said the UFW can thus communicate its message to workers in the entire San Joaquin Valley. Some worker-members of the Agricultural Workers of America testified that they want to eat their lunch without having union organizers present. ALRB chairman Stoker favors eliminating the access rule. He would like the ALRA conform fully to the NLRA, which would eliminate the three unique features of the ALRA: quick elections, the make-whole remedy for employer bad-faith bargaining and broader union rights to establish what constitutes a member of the union in good standing. The five-member Board did not support Stoker's proposal to eliminate access, but did vote to have ALRB staff develop options to make changes in the access rule. Two other issues were also discussed. First, there was testimony against the current N/O regulation that permits unions, after they obtain signed authorization cards from 10 percent or more of the employed workers, to obtain from the employer a list of worker names and home addresses. Many growers would like to raise this threshold to 30 or 40 percent. The ALRB voted 3-0 to have its staff develop regulations that would require unions to obtain signatures from 30 percent of workers to get names and home addresses. Second, many growers criticized decertification procedures. Under current ALRB regulations, a union remains the certified bargaining representative of the workers who elected it until employees petition for a decertification election. Decertification votes, in turn, are normally permitted only near the end of a collective bargaining agreement. Growers, citing "abandonment" of workers by certified unions, advocated a procedure whereby the EMPLOYER could petition the ALRB to hold a decertification election when the employer believes that a majority of workers no longer favors the union. The ALRB voted 5-0 to have its staff develop a regulation that would permit workers and possibly employers to challenge the continued certification of a union under some conditions, and to permit 30 percent of workers to petition for a decertification even if no contract was ever negotiated. Once the ALRB formally announces revised regulations to implement these changes, there must be public hearings, so that current regulations are likely to remain in effect throughout 1998. The ALRB issued two decisions that illustrate that the burden of proof in challenging union organizer and ALRB agent conduct is on the employer who alleges violations of the ALRA. In Mehl Berry Farms, 23 ALRB 9 (1997), the ALRB once again restated its Dutra Farms rule, 22 ALRB 5 (1996), which puts the burden of proof on employers who wish to bar union organizers from their property for abusing the access right. In this case, four UFW organizers were confronted by a supervisor as they attempted to take access to strawberry workers. Then they refused to provide him with N/A documents, entered the fields, and told workers that they would be fired at age 50 by the employer if they did not have a union contract. The ALRB rejected Mehl's complaint that the UFW organizers threatened and harassed berry pickers, but it did order a hearing, in which Mehl has the burden of proof, on whether the UFW organizers took access without filing the proper N/A papers. In Gilroy Foods, 23 ALRB 10 (1997), the ALRB dismissed objections filed by the employer after a July 28, 1997 election in which workers voted 123-61 to have the United Food and Commercial Workers union, Local 1096, represent them. Gilroy Foods complained that the UFCW should not be certified as bargaining agent because, inter alia, the list of current employees names and addresses provided to the ALRB and UCFW was leaked to the UFW, and one worker reported that a UFW organizer visited her at her home and asked her to write in the UFW on her ballot, implying that an ALRB agent may have leaked the name and address list. The Board dismissed this objection, noting that the UFW did not appear on the ballot (only UCFW and no union did) and that the employer failed to prove the list was leaked. Gilroy also complained that too few workers voted. Gilroy had 220 employees on the list of names submitted to the ALRB before the election, and 200 workers cast ballots, including 189 valid ballots. Reinstating Illegal Alien Workers. The Second Circuit US Court of Appeals in December upheld a National Labor Relations Board order requiring A.P.R.A. Fuel Oil Buyers Group Inc, a Brooklyn heating-oil company, to provide illegal workers wrongfully fired for their union activities with back pay and reinstatement. A.P.R.A. hired the two workers in 1989-1990, knowing that they were not authorized to work in the US. After they were hired, the two unauthorized workers signed Teamster authorization cards, and A.P.R.A. told them to disavow their signatures or be fired. They did not disavow, and were fired in January-February, 1991. The NLRB concluded the firings were unlawful retaliation for the workers' union activities, and the courts agreed. The NLRB in 1995 ordered the company: (1) to provide back pay to the two workers from the date of their unlawful discharges until either they were reinstated by A.P.R.A. or failed to produce work authorization documents and, (2) to reinstate the men if they produced work authorization documents. A.P.R.A. appealed, citing the 1984 U.S. Supreme Court's decision in Sure-Tan Inc. v. NLRB. In Sure-Tan, unauthorized workers in two Chicago tanneries were reported to the INS after electing a union to represent them, and they were returned to Mexico by the INS. The NLRB ordered Sure-Tan to reinstate them if they re-entered the US legally, and to award them back pay. The Supreme Court overturned the NLRB remedy and said that unauthorized workers are not eligible for back pay when they are not "lawfully entitled to be present and employed in the United States." Several circuit courts have since held that Sure-Tan's bar to back pay applies only in cases where the unauthorized workers left the US, arguing that Sure-Tan was primarily directed at not encouraging illegal entry. If the unauthorized workers remain in the US, they may be eligible for back pay. The Second Circuit reasoned that the purpose of the Immigration Reform and Control Act of 1986 was "to reduce the incentives for employers to hire illegal aliens." Since IRCA did not affect the NLRB's remedial powers, the Second Circuit held that the NLRB could continue to fashion remedies for labor law violations so long as they do not conflict with IRCA. Requiring employers to provide back pay and reinstatement for unlawfully discharged unauthorized workers, the court concluded, "helps to ensure that employers who comply with the IRCA do not suffer a competitive disadvantage for their obedience to the law." If back pay were not required, the court reasoned, unauthorized workers would be "an easy target for employers resisting union organization, and thus, frustrate the rights of lawful U.S. workers under the NLRA." The reinstatement remedy, the court noted, is conditioned upon the workers' lawful re-entry into the US. In 1996, the House approved an amendment that would have barred the NLRB from ordering back pay on behalf of undocumented workers for any period they were not lawfully in the United States, but the measure died in the Senate. This case may have some bearing on several pending ALRB cases, including one in which a California farmer unlawfully fired several unauthorized workers in retaliation for their union activities. The ALRB ordered the workers to be reinstated, and the employer agreed to reinstate them, provided they completed new I-9 forms; the employer "knew" that the documentation they presented when they were first hired was false. The ALRB has been grappling with the issue of whether it can order reinstatement by asserting that the discharges were not lawful, and thus the I-9 forms originally accepted by the employer remain valid. Barbara Yuill, "Second Circuit Upholds NLRB Remedy of Back Pay, Reinstatement, to Illegal Aliens," Daily Labor Report, December 22, 1997. Mike Lewis, "State labor board chief targets rule giving UFW access to workers," Fresno Bee, December 4, 1997. Florida: H-2A, Suits (posted 2/27/98) H-2A. In December, Langley Groves in central Florida asked Department of Labor for permission to import orange pickers for work beginning February 7, 1998. The company offered at least $6.36 an hour, but expects both domestic and foreign workers who are employed to earn at least this much per hour under a piece-rate wage. Florida is in its second straight season of record orange crops, with a record 254 boxes of fruit projected for 1997-1998. Growers are most worried about having enough workers in May-June 1998, when yields decline, making it harder for workers to earn high wages, and workers can migrate north for farm jobs. University of Florida economist Leo Polopolus estimates that 30 to 40 percent of the 80,000 and 100,000 farm workers in Florida may be unauthorized. DOL has only approved the use of H-2A workers in Florida to harvest sugarcane. In Immokalee, six tomato pickers on December 20, 1997 launched a hunger strike to demand higher piecerate wages. Most growers pay workers $0.35 to 0.40 per 30 to 35 pound bucket of green tomatoes that they pick; a workers' spokesperson said the average picker earns $9,000 a year, and that workers want the piece rate raised to $0.60 a bucket. A short strike in November 1997 at Garguilo Farms in Immokalee resulted in an increase in the piece rate to $0.45 a bucket in 1998, and $0.50 a bucket in November 1999. Tomato production in Florida in 1998 is up almost 10 percent over 1997. Most Florida tomatoes are picked while they are green; the green tomatoes are gassed to turn them ripe before they are shipped to retail stores. Some workers are paid under a "day and dime" formula: workers receive the minimum wage of $5.15 per hour, plus $0.10 a bucket picked. Workers pick 15 to 25 buckets an hour. Suits. The Migrant Farmworker Justice Project filed suit in West Palm Beach on behalf of 64 pickers that alleged that Punta Gorda-based Turner Food Corp. used farm labor contractors to obtain orange harvesters who deduct transportation and lodging costs from worker paychecks, leaving workers with less than the federal minimum wage of $5.15 an hour. The suit alleges that Turner paid $0.65 per 90-pound box of oranges picked, less than the prevailing $0.70 rate. Turner, with annual sales of $40 million, has 29,000 acres of citrus spread throughout South Florida; it is owned by FPL Group, the parent of Florida Power & Light Co. There are an estimated 30,000 to 50,000 migrant farm workers in Palm Beach County and 25,000 in Dade County, mostly in Homestead. Land values are generally falling in the southern part of the state, and they are rising in the northern part of Florida. In the southeastern part of the state, farm land in May 1997 was worth about $20,000 an acre if it was more than five miles to the nearest town and $30,000 or more if it was within five miles to town. In the northern parts of the state, land prices are much lower, but rising; about $1,000 to $2,000 per acre. The Florida Farmers & Suppliers Coalition produced a $60,000 15-minute video tape that reports that Florida vegetable growers have lost $700 million since NAFTA went into effect, 200 farmers have gone out of business and 10,000 US jobs were lost. Florida's First District Court of Appeal on November 5, 1997 ruled that workers fired from Quincy Farms after a March 1996 protest were entitled to UI benefits after they unconditionally offered to return to work. Quincy Farms has 700 employees. Family Income: Model Comments About TANF Regulations on CDF Website On Thursday, November 20, 1997, the Clinton Administration published proposed regulations for aid to children and families under Temporary Assistance for Needy Families (TANF), the program established in the 1996 federal welfare law. The public has 90 days to comment to the U.S. Department of Health and Human Services, and can do so either on their website at: http://www.acf.dhhs.gov/news/welfare or by mail at: Health and Human Services ** Model comments about the proposed Temporary Assistance for Needy Families (TANF) regulations will be available on the CDF website, at: http://www.childrensdefense.org. They should be up on the site by Monday, January 26. Comments are due to U.S. Health and Human Services by February 18, 1998. Your comments will help to make it easier for states to run innovative programs that offer help to families with children, and to protect children whose parents cannot work. If you cannot reach our website, e-mail T'Wana Lucas at: tlucas@childrensdefense.org and she will fax or send a copy to you. President Clinton on Feb. 2 proposed a record $4.2 billion for the Immigration and Naturalization Service WASHINGTON-President Clinton yesterday proposed a record $4.2 billion for the Immigration and Naturalization Service, including hiring 1,000 more Border Patrol agents and 430 more inspectors for the ports of entry. The proposal for the fiscal year beginning Oct. 1 is an increase of $413.4 million over current levels and would mean the INS budget will have quadrupled this decade. Because the border buildup in San Diego already has largely taken place, most of the new agents are likely to go to Texas, Arizona and New Mexico. But some are likely to go to El Centro, where Clinton's budget proposed $8.4 million for two new Border Patrol buildings. The plan calls for spending $211 million for a second straight year to overhaul the INS' overwhelmed and much-criticized naturalization program through which immigrants become citizens. The plan comes at a time of huge backlogs and long delays in handling naturalization applications. For the third straight year, the budget plan would give $500 million to states to defray some of the costs of jailing criminal immigrants. Most of the money is likely to go to California because it houses most of the nation's criminal immigrants. The budget proposal also calls for building a bureaucratic fire wall within the agency between officials involved in enforcement and those who handle applications for benefits, such as green cards and citizenship. The proposal is partly a response to criticism from some advocacy groups that INS officials with law enforcement backgrounds may be overly suspicious of some applicants or even treat them like criminals. Most INS law enforcement agents want to break away from the benefit side of the agency. They complain that they work too often for superiors with no law enforcement background. Agency officials say privately that they hope a modest reorganization within the INS will forestall political pressure to break up the agency. The U.S. Commission on Immigration Reform, describing the INS as suffering from mission overload, made such a recommendation last year. The INS opposed it, but it resonated with some members of Congress who are frustrated over the agency's continuing problems. The president's proposal would continue a flood of resources into the agency since 1994. If the president's call for 1,000 more agents next year is approved by Congress, which is almost certain, the number will have increased from 3,965 in 1993 to 8,378 by Sept. 30, 1999. Copyright 1998 Union-Tribune Publishing Co. Military Distractions and Border Militarization Escalate , from Universal Press Syndicate for release: Week of February 6, 1998, Column of the Americas LAREDO, TEXAS-Thousands of trucks line up daily on the highway leading into Mexico, causing an eyesore, unbearable noise, fumes and even fatal accidents. There's little money to alleviate the NAFTA-related congestion, but there's plenty for the "Joint Task Force Six" project, which calls for the construction of 240 miles of roadway, 12 helicopter launch pads and 50 high-tech lights nearby. Its purpose is to create a greater presence for the U.S. Border Patrol and to involve the U.S. military in combating the drug war. This truly looks like occupied territory. And at the Las Cruces, N.M., border checkpoint, the U.S. Border Patrol tallies "alien removals," narcotics and their monetary "value". Their slogan, "America's Front line: Fighting the War on Drugs," apparently targets hard-working migrants in that war. To wage a genuine drug war, perhaps the U.S. government should commence it by patrolling the nation's largest financial institutions, which often serve as conduits for drug money. There's seemingly no money in these God-forsaken borderlands, but mention the Border Patrol or a military conflict and there's suddenly plenty for these costly endeavors. And much like a border threat, there is also nothing like a military conflict (Iraq, this time) to bolster our country's military spending. Sadly, the militarization of the border is nothing new. Forts and bases have been here since the Mexican-American War. What's happening now is simply a technological upgrade. As a result of the joint project, the Mexican American Legal Defense and Educational Fund in San Antonio has filed a lawsuit to stop its construction, pending a full environmental study. MALDEF believes that the project could threaten several endangered species, the environment and several archeological sites, and that it could also lead to an increased violation of the rights (illegal search and seizure) of area Mexican Americans. Meanwhile, Republicans want to dismantle the inept Immigration and Naturalization Service. Standing in the way is the Clinton administration, which has pumped so much money into this agency that there are now more border patrol officers than FBI agents nationally. And there are more on the way for this nonproductive sector of big government. Without commies to pick on, illegal aliens make for good scapegoates, because, contrary to what former Calif. Congressman Bob Dornan continues to insist upon (in defiance of the GOP), they don't vote. And if those scapegoats aren't enough, Sadaam Hussein or Arab terrorists will suffice. Recently, an abortion clinic was bombed in Alabama, a crime the government rightfully denounced. Yet, the bombers seem to be emulating our government's example. Have a problem? Bomb the hell out of them! That's what gang members tell the two of us. They simply settle their differences the way governments settle theirs: through force. Weak leaders use force to show "strength." They overcompensate. Ronald Reagan, the tough guy on the silver screen, thought strength was overrunning tiny nations such as Grenada. And now, enter a beleaguered Clinton and we have ourselves another Iraq "crisis." Weak leaders, at best, send mixed messages. Violence is wrong, our leaders tells us, yet most remained silent as Karla Faye Tucker of Texas was executed. At the same time, Clinton argued his case for using the United Nations-a body that was created as an instrument of peace-as a cover to unilaterally bomb Iraq. Diversions always work nicely, especially when an inquisitor-without a proper job description-is shadowing Clinton's every move. The lessons we learn from all this are that morality and redemption are no longer part of our vocabulary. The real problem in this country is the brown hordes, and everything can be solved through the erection of walls, or through violence. And through all this, we all point fingers at each other because while there's money for more $2 billion B-2 bombers, there is not enough money to educate us all. Meanwhile, the fumes on the border are nauseating. COPYRIGHT 1998 UNIVERSAL PRESS SYNDICATE Both writers are authors of Gonzales/Rodriguez: Uncut & Uncensored (ISBN 0-918520-22-3 UC Berkeley, Ethnic Studies Library, Publications Unit. Rodriguez is the author of Justice: A Question of Race (Cloth
ISBN 0-927534-69-X paper ISBN 0-927534-68-1 Bilingual Review
Press) and the antibook, The X in La Raza II. They can be reached
at PO BOX 7905, Albq NM 87194-7904, 505-247-3888 or XColumn@aol.com Hispanic Economic Picture Shows Slight Improvement - But NCLR warns that Latinos are still poorest community in the U.S. Washington, D.C. - (Released by Raul Yzaguirre, NCLR President, following the Census Bureau's release of the 1996 Income, Poverty, and Health Insurance Estimates.) We are heartened that the reports on income, poverty, and health insurance converage released today by the Census Bureau show a slight but significant rise in the median income of Hispanic households, the only group not to experience such an increase last year. But we are disturbed by the report's confirmation that, for the second straight year, Latinos are the poorest of all Americans. The Census Bureau data show that the economic picture for Latinos appears to be brightened and that Latinos are seeing some long-overdue benefits from the robust economy. we are very concerned, however, that, given the statistically insignificant reduction in the poverty rate and continued high labor force participation rates of Latinos, the rise in income may simply be due to Lations' working harder and longer than ever before. That so many Hispanics are working but still poor should raise a red flag to all those who believe that the solution to poverty in this country lies in gutting welfare programs and putting people to work. The 'conventional wisdom' about the poor just does not apply to Latinos. Welfare reform will fail to alleviate poverty in the Latino community because it is likely to add owrkers to the low-wage labor market without increasing efforts to help those who are already working but still poor. We must look, therefore, to the other public policy solutions, such as improving the educational status of the Latino community, which has the lowest level of educational attainment of any group in the country; expanding tax relief to low-income families through programs such as the Earned Income Tax Credit which, in 1995, reduced Hispanic poverty by three percentage points between 1994 and 1995; and providing additional homeownership opportunities to working poor families to help build wealth, assets, and promote ceonomically stable neighborhoods. But government alone cannot solve the problem. Employers need to look at ways of enhancing the quality of low-wage work though health insurance, pensions, and other benefits that help decrease a workers' out-of-pocket expenses. And we must not dismiss the myriad opportunities that exist to help one person at a time such as teaching a child to read, mentoring a teenager on future goals, or providing a part-time or summer job. All of us have a role to play and a step in the right direction would be to recognize the unique situation facing the Hispanic poor to be able to improve the economic prosperity of all working poor families. 1111 19th Street, N.W.,
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