Farmworkers’ wages threatened by Trump administration’s inaction 

The middle of a pandemic is a particularly challenging time for low-wage workers to take a pay cut, but the 205,000 farmworkers across the country could face that dire situation next year. 

The U.S. Department of Agriculture abruptly decided to cancel its annual survey of farmworker wages, throwing 2021 wage rates for both H-2A temporary foreign workers and their U.S. counterparts into uncertainty — and farmworkers and advocates are scrambling.  The survey is used to set what is called the Adverse Effect Wage Rate, or AEWR, that growers must pay to the  H-2A workers and to any U.S. workers performing the same job. 

The Adverse Effect Wage Rate is designed to prevent agricultural employers from being incentivized to hire foreign labor at lower wages, to the detriment of local workers. Te AEWR is set annually for each state based on the USDA survey. North Carolina’s hourly rate is $12.67 — ranking 34th among all states. (The rates for the Southeast and Deep South are much lower than much of the US; North Carolina is first among those states, tied with Virginia.) 

 Over the years, there have been many attempts, legislative and administrative, to reduce the AEWR or allow growers to pay lower wages in some other way. It’s possible that H-2A workers could see their pay cut to the federal minimum wage of just $7.25 an hour; North Carolina’s minimum is the same as the federal rate.

Scuttling the wage survey is the latest maneuver to placate the agricultural industry at the expense of the workers who put food on our tables. 

Report: “50 reasons the Trump administration is bad for workers”

Intimidating local health departments on behalf of the meat-packing industry. Excluding millions of workers from paid leave. Pushing for lower wages for migrant workers.

These are just three of the 50 reasons the Trump administration is bad for workers, according to a recent report published by the Economic Policy Institute, a nonprofit, nonpartisan think tank that focuses on the needs of low- and middle-income workers in economic policy discussions.

In its review of the Trump administration’s policies, rules and actions, the EPI illustrated the systematic erosion of workplace rights over the past several years. The report, “50 reasons the Trump administration is bad for workers,” details attacks on working people in the areas of union organizing, collective activity, and elections; overtime, tip pay, and farmworker wages; unemployment insurance; worker health and safety; trade policy; and many others. 

Also highlighted are important ways in which Trump and his Department of Labor failed to take proactive action to protect workers in the face of the COVID-19 pandemic. 

From the report: 

The pandemic has merely provided the administration another opportunity to continue its attacks on workers’ rights. Instead of instituting policies to protect the nation’s essential workers, the administration has remained largely silent on workplace safety standards, refusing to issue mandatory emergency standards to protect workers against the new threat of the coronavirus. As a result, workers continue to be required to work without protective gear and other measures necessary to keep them safe. Furthermore, sick workers continue to lack access to paid leave. And, when workers try to speak up for themselves and one another, they are fired.

EPI called on any future administration to “work with the same diligence from Day One to reverse these actions … and advance a workers’ first-100-day agenda that includes measures that provide working people with the rights and protections they need and deserve.”

Veteran attorney explains rights of people heading back to work and hoping to stay safe

My workplace is reopening, but I’m afraid conditions there are unsafe. What can I do?

The North Carolina Division of Employment Security will consider that you have good cause not to return to work, and you may be eligible to continue to receive unemployment benefits, under the following circumstances:

  1. You have been diagnosed with or have symptoms of COVID-19 and a medical professional has advised you not to go to work;
  2. A member of your household has COVID-19 or you are caring for a family or household member with COVID-19;
  3. You are at high risk for COVID-19 ( 65 years of age or older, or have serious underlying medical conditions including being immunocompromised or having chronic lung disease, moderate-to-severe asthma, serious heart conditions, severe obesity, diabetes, chronic kidney disease and undergoing dialysis, or liver disease);
  4. You are the primary caregiver of a child or person in your household whose school or care facility is closed due to COVID and you can’t work because of the closure;
  5. You can’t get to work because of a quarantine order or a health care provider has advised you to self-quarantine;
  6. You can’t report to work because of a government order regarding travel, business operations, or mass travel;
  7. You reasonably believe there is a valid degree of risk to your health and safety due to a significant risk of exposure or infection to COVID-19 at your employer’s place of business due to a failure of the employer to comply with guidelines as set out by the CDC, other governmental authorities or industry groups as may be found in CDC guidance, the Governor’s Executive Orders, or other binding authority; or due to objective reasons that the employer’s facility is not safe for you to return to work.

I have returned to work (or I have been working), and things are not safe. What are my options?

  1. Raise your concerns with your employer. Workers have the most legal protection when they bring complaints or concerns to their employer in a group of two of more people. Look at the CDC and OSHA guidelines for businesses. Be as specific as you can about what you think needs to happen in your workplace in order for you to safely return to work.
  2. File an OSHA complaint. You have a legal right to a safe and healthy workplace. You can file a complaint with the NC Occupational Safety and Health Division by calling 1-800-NC-LABOR or filing a complaint online. You do not have to give your name, but if you don’t, be as specific as you can about the workplace location and the problems (such as a lack of masks on the processing floor, or no social distancing between employees in the warehouse). Let OSHA know how many people are exposed to the unsafe conditions.
  3. If you qualify, request paid leave. If you have a child who is not able to attend school or daycare because of COVID-19 and your employer has fewer than 500 employees, you may qualify for up to 12 weeks of paid emergency leave. This leave is paid for by the federal government through your employer, and is paid at 2/3 of your normal pay up to a capped amount. It is available to people who cannot work or telework because the child’s school or daycare is closed.
  4. Apply for unemployment benefits, if you decide not to stay at work. If you leave your job, you will need to show you had good cause to do so in order to get unemployment benefits. See the information on page 1 of this flyer about when you may have good cause. Get a doctor’s note, if you are at high risk.If you are getting paid leave through your employer, you must use that leave before applying for unemployment. All applications during the COVID-19 crisis must be filed online or by phone, 1-888-737-0259. If you are denied unemployment benefits, you have 10 days to appeal the agency’s decision against you. You need to appeal in writing.

I have COVID-19. Now what? Read more

Trump administration rolls back labor protections

The Trump Administration this week made good on its promise to roll back its Department of Labor’s stance regarding protections for employees who work for more than one company.

Formally adopting its proposed interpretation of “joint employment,” the Department set forth criteria for when it thinks a company is sufficiently involved in a worker’s employment that it should be liable for wage and hour violations suffered by that worker.

Not surprisingly, this new standard is much more stringent that what is being used by most courts, and what the Department’s interpretation was of joint employment under the previous administration.

By restricting a finding of joint employment to those companies who hire or fire, pay, keep employment records, and control schedules and job conditions, it will be harder for the Department to enforce wage standards in workplaces where higher level corporations contract out responsibility to other entities.

Fortunately, because the rule is arguably interpretive rather than legislative, it may not be entitled to much deference by the courts.  It should also be relatively straightforward for a future administration to return to a more common-sense interpretation.  Worker advocates are considering their options.

Resources on Joint Employment are available here and here from the N.C. Justice Center and the National Employment Law Project, respectively.

Carol Brooke is a senior attorney with the N.C. Justice Center’s Workers’ Rights Project. Policy Watch is also a Justice Center project. 

Trump administration rule change would stymie workers’ suits against employers

“The Future of Work.”

It sounds so promising, with its emphasis on flexibility, app-based employment, and following your passion.  Some of that future is here now, and it’s not living up to the promise.

Workers misclassified as independent contractors lose out on valuable benefits.  Workers cobble together multiple “gigs” in a vain attempt to keep their financial heads above water.  And corporations make out like bandits by very effectively distancing themselves from any responsibility for their employees.

Now the Trump Administration wants to increase that distance.  They propose to do so by adopting new regulations that change how you determine when a top level corporation is sufficiently involved in an employee’s work, limiting a worker’s ability to sue them – not just the middleman – when those employees aren’t paid correctly.

Right now, there is a broad test used by courts to determine who is an employer when there is more than one possible answer to that question.  The proposed new rule would significantly narrow that test – making it much harder for workers to go up the food chain and sue the entity that may be most responsible for the wage violation.  Not unexpectedly, that higher level company may also be the only one who can afford to pay the workers who have been cheated.

In 2014, dozens of hardworking janitorial employees who cleaned Durham schools learned that the subcontractor who employed them had declared bankruptcy and would not be paying them their final two weeks of wages.  Not only that, but the workers were owed overtime and back wages for underpayment of the promised hourly rate.

Because these workers were jointly employed by the school system and the higher level contractor, as well as their bankrupt subcontractor, they were able to reach a settlement and receive back wages.  Had the proposed new rule been in effect at the time, it is unlikely these workers would have been able to recover anything, since the contractor and school system who contracted out the work would probably not be considered employers who were responsible for ensuring the workers were properly paid.

Temporary workers and those who work through staffing agencies will be particularly impacted if the proposed joint employer rule goes into effect.  In North Carolina, temporary employment has grown faster than in the nation as a whole, increasing by 52 percent between 2009 and 2014.[1]  Temporary and staffing work has particularly increased in low-wage, “blue-collar” occupations, especially in more hazardous industries such as construction, manufacturing and logistics.

If the joint employer rule goes into effect, it will incentivize the use of temporary, staffing, and subcontracted workers rather than direct hires because it will protect companies from liability.  This is a problem because these so-called “contingent” workers earn considerably less money than permanent, direct-hire workers.  Contingent workers lose out on training, benefits, and overtime pay.  Read more