May 16, 2012

X. Recommendations

To the United States Congress

Reform federal laws to better protect unauthorized immigrant farmworkers from sexual violence and harassment:

  • Pass the Senate version of the Violence Against Women Act (VAWA) reauthorization bill (S. 1925) or similar legislation that strengthens the U visa and other protections for immigrant victims of domestic and sexual violence, including farmworker women and girls. However, because more protections are needed, also pass legislation that:
    • Removes the arbitrary caps on the number of U and T visas available for immigrant victims of serious crimes.
    • Allows immigrant victims to present secondary evidence that they have been helpful in the investigation of the crimes against them, in lieu of law enforcement certification, for U visas.
    • Allows immigrant witnesses who are helpful in the investigation of serious crimes, such as sexual violence, to be eligible for legal status similar to that conferred by the U visa.

Reform immigration law to reduce the vulnerability of farmworkers to sexual violence and sexual harassment, as well as other abuses:

  • Enact legislation that creates a program of earned legalization for the unauthorized farmworkers already in the US.
  • Enact reforms that better protect migrant workers entering the US on guestworker visas from workplace abuses:
    • Eliminate worker dependency on abusive employers by making visas portable between employers, with a grace period in which workers can find new employment if their current job ends for any reason.
    • Protect guestworkers from discrimination during recruitment on the basis of race, color, religion, sex, national origin, age, and disability, in accordance with anti-discrimination laws applied to other workers in the US.
  • Include guestworkers in protections under the Seasonal and Migrant Agricultural Worker Protection Act, as well as the National Labor Relations Act.
  • Create a path to permanent resident status for guestworkers and family members who have been in the US for a set period of time.

Reform or repeal federal laws that dissuade agricultural workers, both authorized and unauthorized, from reporting workplace sexual violence, sexual harassment, and other abuses:

  • Enact legislation to ensure equality of remedies for all workers who suffer workplace violations or seek to enforce workers’ rights, regardless of immigration status, and thereby rectify the Supreme Court’s decision in Hoffman Plastic.
  • Revise the caps on damages available under Title VII of the Civil Rights Act of 1964 to keep pace with inflation and to provide a sufficient deterrent to unscrupulous or irresponsible employers.
  • Eliminate the exclusion of farmworkers from the National Labor Relations Act and acknowledge that, like all other workers, they have the right to collective bargaining.
  • Amend the Fair Labor Standards Act to:
    • Give agricultural workers the right to overtime pay, ensure payment of the minimum wage, and cover small farms, in keeping with the protections available to workers in most other industries;
    • Apply the same age and hour requirements to children working for hire in agriculture as already apply to all other working children;
    • Set or raise the minimum age for agricultural work to at least 14, with the sole exception being children working on farms owned and operated by their parents.
  • Halt yearly approval of a rider exempting almost all farms with 10 or fewer employees from the jurisdiction of OSHA.
  • Eliminate restrictions on the ability of organizations funded by the Legal Services Corporation to represent unauthorized farmworkers.

To the US Department of Homeland Security

  • Repeal programs such as Secure Communities which require or encourage local police to enforce federal immigration laws.
  • Screen immigrants arrested in enforcement actions for eligibility for U and T visas, and ensure that appropriate prosecutorial discretion policies, as outlined in Immigration and Customs Enforcement (ICE) memoranda, are applied to them.
  • Ensure consistent, accurate application of U visa laws and regulations by local law enforcement agencies by disseminating information on the specific legal requirements for U visa certification and the role played by certifying law enforcement agencies.
  • Issue a directive to all ICE field offices to abide by the terms of Operating Instruction 287.3, which requires agents to determine whether employers or others have supplied information about unauthorized workers in an effort to interfere with their workplace rights, and ensure all agents and local law enforcement agents involved in immigration enforcement are trained on the use of the Operating Instruction.

To the US Equal Employment Opportunity Commission

  • Continue outreach and prioritization of services to low-income immigrant victims of sexual violence and sexual harassment, including those in rural areas.
  • Eliminate unnecessary delays in processing claims, and ensure investigators are trained to work with victims of sexual violence, are aware of and responsive to cultural differences, and, wherever possible, have appropriate language capacity.

To the US Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA)

  • Increase agricultural workplace inspections, particularly those targeting child labor and minimum wage violations, and increase civil money and criminal penalties within the limits allowed by law to improve compliance with relevant laws.
  • Make referrals to the appropriate agencies when evidence of sexual harassment is encountered during an investigation, and promulgate regulations and remedies related to sexual harassment as an occupational health and safety issue.
  • Make use of the joint-employer concept under the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the Fair Labor Standards Act (FLSA) to hold growers responsible along with farm labor contractors for providing farmworkers protections under the AWPA.
  • Make use of the “hot-goods” provision of the Fair Labor Standards Act to allow courts to issue emergency orders barring companies from shipping or selling goods produced by improperly paid workers.
  • Vigorously enforce OSHA’s Field Sanitation Standard, which requires employers to provide workers with drinking water, toilets, and hand-washing facilities.

To All State Governments

  • Ensure that state laws provide farmworkers adequate protection from sexual harassment and other workplace abuses where federal legislation fails to accomplish this.
  • Enact comprehensive anti-sexual harassment laws if no such laws currently exist, and, if they do exist, eliminate exemptions for agricultural workers and ensure broader coverage of employers with provision for remedies sufficient to deter employers from violating these laws.
  • Ensure that victim services, including services to address the short- and long-term physical and psychological consequences of sexual violence, are available and accessible for all victims, regardless of immigration status, and that farmworker communities are made aware of these services.
  • Assess the linguistic needs of farmworker populations in the state and, wherever possible, take steps to increase the capacity of state labor agency staff to provide effective assistance to immigrant farmworkers, including indigenous farmworkers who cannot communicate effectively in English or Spanish.
  • Refrain from passing immigration legislation similar to Arizona’s SB 1070 or Alabama’s HB 56, which increase fears of police and discourage reporting of crimes in immigrant communities.

To Local Law Enforcement Agencies

  • Investigate vigorously all complaints of sexual violence by immigrants, regardless of immigration status.
  • Hire bilingual and culturally sensitive staff; do not call upon federal immigration officers as interpreters.
  • Take all necessary and appropriate steps to assure immigrant communities that unauthorized immigrants who report crimes will not be reported to immigration authorities.
  • Undertake outreach to build relationships with farmworker and immigrant communities.
  • Ensure that the agency’s U visa certification process is transparent and accessible to eligible immigrant victims of crime.

To Agricultural Employers

  • Create and enforce clear policies prohibiting sexual harassment and abuse and accessible channels by which employees can safely report sexual harassment and other workplace violations.
  • Provide culturally and linguistically appropriate trainings on sexual harassment and abuse, and, where possible, work with farmworker advocacy organizations to create materials and conduct trainings.
  • Investigate every reported instance of sexual violence or harassment and take prompt, corrective action to remedy the problem.
  • Contract only with licensed contractors who can demonstrate that they are able to comply with worker protection laws and create and enforce policies prohibiting sexual harassment.

To Agencies Providing Services for Victims of Sexual Violence and Harassment

  • Conduct culturally sensitive and linguistically appropriate outreach to immigrant workers, including, wherever possible, indigenous farmworkers who cannot communicate effectively in English or Spanish.
  • Advocate for additional resources to increase access by rural immigrant workers to bilingual therapists.