University
of California
University
of California
Comment by Sen. Wyden on Amendment to S.1650
from the CONGRESSIONAL RECORD -- October 7, 1999
AGRICULTURE, RURAL DEVELOPMENT, FOOD AND DRUG ADMINISTRATION, AND RELATED AGENCIES APPROPRIATIONS ACT, 2000 -- CONFERENCE REPORT (Senate - October 7, 1999)
Mr. WYDEN. Mr. President, I want to take a few minutes tonight--Senator Graham of Florida will be joining me, and Senator Gordon Smith of my home State, my friend and colleague, will be joining me as well tonight--the three of us want to take a few minutes to talk about the important amendment we were able to have added to the HHS appropriations bill during the course of the last week.
In the beginning, we especially express our appreciation to Senator Specter and Senator Harkin. They worked with the three of us and our staffs over the last week on this particular issue.
What our agricultural labor amendment does is require the Department of Labor to report to the Congress on how the Department plans to promote a legal, domestic workforce--specifically, to improve compensation, working conditions, and other benefits for agricultural workers in the United States.
Today's agricultural labor program is a disaster for both farm workers and for farmers. We have a system that is completely broken. Estimates are that well over half of the farm workers in this country are illegal. As a result of their status, they can have no power at all. They can't even vote. They are subjected to the worst possible conditions imaginable, horrendous housing, and, in many instances, thrown into the back of pickup trucks and moved by people called coyotes, who, for a profit, bring them from other countries. The conditions to which our agricultural workers are subjected in so many instances are nothing short of immoral.
At the same time, the growers, who have a dependable supply of workers to pick their crops, are also in a completely untenable situation, the growers who want to do the right thing. Senator Smith and I represent a great many of those growers and farmers in our home State of Oregon, who don't know where to turn to find legal workers.
The General Accounting Office did a report a couple of years ago on the farm worker situation in our country. They said there really are enough farm workers, but they came to that conclusion only by counting the illegal farm workers in our country. Well over half of the farm workers in the United States are illegal. It is a situation that essentially turns those farmers, when they want to do the right thing, into people who have to make a choice as to whether or not they want to be felons and not comply with the law or simply another individual in the bankruptcy line in our country.
To give you an idea how absolutely unacceptable this situation is, just this week I had berry farmers from my home State in Oregon telling me they had recently had meetings with the Department of Justice and the Immigration and Naturalization Service. They were told, in effect, how to work the system, but they weren't given any hope that what they were doing was within the law. In effect, the administration was telling the berry farmers in my State, with a wink and a nod, they should tolerate this system that is based on workers who can have no power and farmers who lack a system that is dependable and reliable so they can find legal workers.
In the last session of Congress, Senator Graham, Senator Smith, and I put together a bipartisan proposal to change this wholly unacceptable situation and produce a new system for dealing with agricultural labor that would be in the interest of both the farm worker and the farmer. Under our proposal, workers who were legal would get a significant increase in their benefits. Just how significant was documented in a report done for us by the Library of Congress, October 21, 1998. At page2 of that report, it states specifically that the Library of Congress found that under our proposal--it received 67 votes in the Senate--the legal farm worker would get significantly higher wages, under what the Senate voted for. In addition, there would be benefits for housing, transportation, a variety of benefits that are so critical to the farm workers.
But after 67 Members of the Senate voted for our proposal, the administration said: It is unacceptable. We are going to veto it. It is not good enough. We have other ideas.
At that time, Senator Smith, Senator Graham, and I entered into a series of discussions with the Clinton administration asking them for their plan on how to produce this system that would address the legitimate concerns of both the farm workers and the growers. We have been at that for more than a year.
I see our good friend Senator Graham coming to the floor, and I will yield to him in just a moment.
Senator Graham, Senator Smith, and I have been at the task of trying to get from the administration their plan to deal with agricultural labor for more than a year. We told them, if they don't like our proposal--67 votes in the Senate; the Library of Congress said it will produce higher benefits, wages, improved transportation, and improved housing for so many legal workers--since it wasn't good enough for the Clinton administration, we would like to see their proposal. We decided we would, in the spirit of comity and a desire to get an agreement with the executive branch, wait for their proposal.
We are still waiting to this day. The administration remains on the sideline to this day, unwilling to come forward with any specific ideas that would be in the interests of both the workers and the growers. Just this week, they told the berry farmers in my home State--and we do a lot of things in Oregon well; frankly, what we do best is grow things; our farmers are very important to our State--the administration basically told them, just wink and nod at the rules that are out there today.
In December of 1998, Alexis Herman, Secretary of Labor, sat in a meeting in Senator Graham's office with Senator Graham, Senator Smith, and myself. Alexis Herman told us, three Members of the Senate, that the administration would give us a specific proposal for dealing with this agricultural labor situation by the end of February 1999.
No such proposal has ever been delivered. In a moment, I am going to yield to my friend from Florida because he has essentially laid out a timeline that demonstrates how many times we have tried to get the administration off the sidelines and to join us in a bipartisan effort to produce a system that would work for the farm worker and for the grower.
By its inaction, the administration is perpetuating a system that is a disaster for both the farm worker and the farmer. It is a system that is totally broken a system that has condemned the vast majority of farm workers to some of the most terrible and immoral conditions imaginable. It is a system that has made it impossible for the farmers who want to do the right thing to know where to turn.
In the last Congress, Senator Graham, Senator Smith, and myself brought a legislative proposal that would change that, which the Library of Congress said would produce a significant amount of additional benefits for the legal farm worker. The Clinton administration said that wasn't good enough, and We have waited and waited for their ideas.
Well, tonight, as a result of the action taken in the Labor HHS bill, we are calling, as a matter of law, on the Clinton administration to give us their plan as to how to produce a legal domestic workforce, which would have improved compensation, improved working conditions, and improved benefits that those farm workers are entitled to as a matter of simple justice.
So I am hopeful that we will get the administration off the sidelines soon. I am hopeful that they will do what they promised to do well over a year ago.
If the Senator from Vermont is willing, I would like to break my remarks off at this point and allow the Senator from Florida to speak for a few minutes. We want to be courteous to our colleague from Vermont because he is dealing with an issue of great importance to him. We will be brief.
I ask unanimous consent that a memorandum be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
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CONGRESSIONAL RESEARCH SERVICE,
Library of Congress, Washington, DC, October 21, 1998.
[Page: S12220] GPO's PDF
MEMORANDUM
To: The Honorable Ron Wyden
Attention: David Blan
From: American Law Division
Subject: Agricultural Labor
Proposal
In your letter of October 15, 1998, you asked for a memorandum comparing the basic federal protections available to farm workers with the protections that would have been extended to farm workers under the proposed conference agreement to the Commerce State Justice bill/H2A provision. The letter stated that you are 'especially interested in whether the agricultural labor proposal before the Appropriations Conference Committee would have offered farm workers, and particularly the more than 99.5% of U.S. farm workers who work on non-H-2A farms new or expanded benefits compared to current law.'
The proposal would have required the Secretary of Labor to establish state and regional registries containing a database of eligible United States workers seeking temporary or seasonal agricultural jobs, in order to inform those workers of available agricultural jobs and to grant them the right of first refusal for available jobs. Basically, farmers would have to apply to the registry for U.S. workers, and hire all referred U.S. workers, before they could seek nonimmigrant alien temporary agricultural workers under the immigration program known as 'H-2A.' Agricultural employers could not import any workers unless the registry failed to refer a sufficient number of registered workers to fill all of the employer's job opportunities. Therefore, the employer could only acquire as many imported workers as would be needed in addition to those U.S. workers referred.
The proposal would have had an impact on domestic farm workers in addition to its effect on alien workers. The general legislative scheme was to condition the right of an agricultural employer to request and hire temporary alien workers on the employer's requirement, first, to seek domestic workers from the registries maintained by the Labor Department, and, then, to extend the protections granted to H-2A aliens under the proposal to all workers in the same occupation on the same farm. Under the proposal, agricultural employers seeking domestic and foreign workers through the registries were required to assure that they would not refuse to employ qualified individuals, and would not terminate them unless there were `lawful job-related reasons, including lack of work.' Employers were also required to comply with the following specific assurances.
WAGES
Under current law, agricultural employers, unless they are exempt as small farmers, must pay the applicable minimum wage and overtime rates under the federal Fair Labor Standards Act (FLSA) or 1938, as amended. 29 U.S.C. 201-19. Under that law, farm workers must receive the greater of the applicable federal or state minimum wage.
Under the conference agreement, the employer must pay the greater of the prevailing wage in the occupation or the adverse effect wage rate to the workers. The employer using the registry must provide assurances that the wages and benefits promised to the workers hired from the registry would be provided `to all workers employed in job opportunities for which the employer has applied [from the registry] and to all other workers in the same occupation at the place of employment.'
MIGRANT WORKER PROTECTION
Under current law, agricultural employers who hire migrant and seasonal workers must comply with the provisions of the Migrant and Seasonal Agricultural Worker Protection Act (MSWPA). 29 U.S.C. 1801 72. The MSWPA, however, does not cover any temporary nonimmigrant alien authorized to work in agriculture employment under the H 2A program. See 29 U.S.C. Sec. 1802(8)(B)(ii).
Under the proposal agricultural employers were required to comply with all applicable federal, state, and local labor laws, including laws affecting migrant and seasonal agricultural workers, for all United States workers as well as all alien workers on the farm.
[Page: S12221] GPO's PDF
HOUSING
Under current law, employers have no responsibility to provide housing or housing assistance to their workers. Under the Migrant and Seasonal agricultural Worker Protection Act (MASWPA), any person who owns or controls housing must comply with substantive federal and state safety and health standards applicable to that housing. 29 U.S.C. 1823.
Under the conference proposal, employers are required to provide housing at no cost to all workers in jobs for which the employer has applied to the registry, and to all other workers in the same occupation as the place of employment, if the workers' permanent place of employment is beyond normal commuting distance. The employer may provide a housing allowance as an alternative.
WORKERS COMPENSATION
Under current law, workers compensation coverage is exclusively a subject of state law, which may not cover all agricultural employees, especially those considered casual or temporary.
Under the proposal, the employer was required to provide insurance coverage providing benefits equivalent to those under state law, at no expense to the worker, for any job that was not covered by the state workers compensation law.
HEAD START
Under current law, migrant employees find barriers to participation in Head Start programs.
Under the proposal, the Migrant and Seasonal Head Start Program would have been established, removing barriers to participation by the children of migrant farmworkers.
TRANSPORTATION
Under current law, employers are not obliged to provide transportation to workers. If transportation is furnished, the employer and any farm labor contractor must comply with the motor vehicle safety requirements of the MSWPA. 29 U.S.C. 1841.
Under the conference proposal, a worker who completed 50 percent of the period of employment would be reimbursed for transportation expenses to the job, and a worker who completed the period of employment would be reimbursed for the cost of transportation back to the worker's permanent place of residence.
ENFORCEMENT OF LABOR LAWS
Under current law, labor laws are enforced primarily by the U.S. Department of Labor and by the responsible state labor enforcement agencies.
Under the proposal, the Secretary of Labor was required to establish an expedited complaint process, including a written determination of whether a violation has been committed within 10 days of the receipt of a complaint.
Workers on farms where the employer did not seek workers through the Labor Department registry would not have been affected by the proposal. Agricultural employers who hire migrant and seasonal workers must comply with the provisions of the Migrant and Seasonal Agricultural Worker Protection Act (MSWPA). 29 U.S.C. 1801-72.
In conclusion, the proposed agricultural registry program would have required farmers to extend the protections of the federal migrant and seasonal worker law to all workers in the same occupation on the site. The proposed agricultural employment bill could well have expanded employment protections for U.S. workers beyond current law. If an agricultural employer applied to a registry and found enough U.S. workers for some or all of the available job opportunities, then those U.S. workers would have been entitled to the enhanced wage, housing, transportation, and other benefits and protections made applicable to all employees in the same work on the same site.
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Mr. WYDEN. I am going to yield the floor at this time.
Mr. JEFFORDS. Mr. President, the Senator from Maine has a brief statement to make on the bill that we are talking about. I know the Senator from Florida has a brief statement, and I have no objection to the Senator from Florida leading. I also thank my friend from Oregon for his remarks about a very serious topic.
I yield to the Senator from Florida.
The PRESIDING OFFICER. The Senator from Florida is recognized.
Mr. GRAHAM. Mr. President, I thank my colleagues from Vermont and Maine for their always courteous generosity, and my colleague from Oregon, with whom I have been working so closely for approximately 2 years plus now on this important issue.
There is one thing I believe we can agree on, and that is that the status quo of agricultural farm workers in America is unacceptable. It is unacceptable to have somewhere between 35 and 50 percent of all of our migratory farm work done by people who are here illegally. It is unfair to the individuals involved because it puts them in the shadows of our society.
If I may, I will state a personal experience. Immediately after Hurricane Andrew, which hit south Florida in August of 1992, there was great concern about communicable diseases such as cholera; therefore the Public Health Service wanted to inoculate the whole population against the potential of these diseases. There is a substantial migrant farm worker population that lives in the southern part of our State, and many of those people refused to come forward to be inoculated, nor would they allow their children to be protected against communicable diseases because they live in such a dark shadow because of their undocumented status. They were fearful that if they came forward, even with firm promises and commitments by the Public Health Service that they would not be reported for any other purpose, they were still not willing to take the risk. So they put themselves, their families, and the entire community at risk. That is one anecdote of the degree to which, by our acceptance of the status quo, we have placed hundreds of thousands of people into a status of servitude and in the dark closet of our society.
We also have placed honest farmers in an extremely difficult situation. They are frequently presented with documents that appear to be credible. They hire people to do necessary work during the brief period that is available to harvest the crops, and then they find out later that these people had fraudulent documents, were undocumented, and that they might be subject to various sanctions.
We also know that because of the current system, we have farm workers--both those who are legal citizens or residents of the United States, as well as those who are undocumented--living in horrendous circumstances of housing, being transported in vehicles that don't meet basic safety standards, being placed in a position where their salaries are held each week in order to pay off previous debts, and they live in conditions that are reminiscent not of the21st century but of the 17th or 18th century. These people are doing extremely difficult work, work that is vital to our Nation and vital to our Nationís economy. They deserve better from us, the policymakers of America, than we have done for them in the past.
One thing we also know, in addition to the fact that the status quo is unacceptable, is the status quo will continue until we decide that this issue is important enough to engage in a serious debate in which we can analyze what the problems are with the status quo, and what the range of solutions to those problems are, and which of those solutions appear to be most appropriate. And it is regarding that which the Senator from Oregon has mentioned that we have had a series of efforts to try to elicit from the administration their plan.
Now, why have we focused so much on the administration? Well, first, they happen to have a unique perspective on the problem, since they are responsible to the Department of Labor, and, secondarily, the Department of Agriculture, for the implementation of the status quo.
Therefore, they should be in a specially advantaged position to analyze and recommend alteration to the status quo.
We also know in this form of government we have that while the legislature's responsibility is to enact law, the President, because of his role and because of his constitutional veto authority, plays a key position in terms of legislation and the law.
So beginning in June of 1997, we have been meeting with representatives of the administration, heads of departments, as well as representatives of the White House. Senator Wyden and myself, sometimes accompanied by others, have met face to face, occasionally by conference telephone call, and occasionally by correspondence with the administration on 12 separate occasions between June of 1997 and May of 1999.
Each one of those had a common theme: What is your proposal? What is your diagnosis of the problem? What is your prescription against this problem? As of today, in early October of 1999, we have yet to receive a credible response to that question.
Thus, the amendment that was accepted to the bill we have just adopted directs the administration to submit to the Congress such a plan. It is my hope that the administration will do so with a sense of expedition. I hope within a period of 60 or 90 days we receive its recommendations so that, if not at their first session of the 106th Congress, then at the earliest point in the second session of the 106th Congress, we would be in a position to have the administration's views as to how this very vexatious problem could be resolved.
I might say that the fact we have made this request, and have made it now for the better part of 30 months, is not an indication that we are going to desist until we have heard the administration's plan. While we would like to have their guidance and suggestions, we consider it to be our ultimate responsibility, as we did in 1998 when we presented to the Senate and the Senate adopted by a margin of well over 2 to 1, the proposal that we submitted. We will continue to take effective action to keep this issue on America's agenda because we cannot tolerate a continuation of the status quo which places hundreds of thousands of human beings into a position of servitude and which places hundreds of thousands of legitimate farmers in a position in which they must operate at the fringe of the law when what they want to do is to be law-abiding citizens.
Before this 106th Congress concludes, I hope we will have had the wisdom to reject the status quo and to have adopted humane, effective public policy which will erase the stain of the status quo of American farm workers, which will have lifted this cloud of illegality from American farmers, which will assure standards of treatment that we as fellow human beings would consider to be dignified and respectful for other human beings, and that we can move forward with a new era in America agriculture.
I appreciate the work of my colleague from Oregon. I also commend our other colleague from Oregon, Senator Gordon Smith. It is an outstanding example of the people of Oregon who have sent to us these two Members of the Senate, who happen to be from different parties but understand their ultimate commitment is to America and to what is best for this great Nation. They are giving us, in this case, as in other areas, an example of what bipartisanship means and what bipartisanship can accomplish. For that, as well as for their friendship, I extend my gratitude.