From the Desk of the Executive Director
Daniel J. Sheehan
AFOP Executive Director
The Center for Budget and Policy Priorities (CBPP) recently praised the Obama Administration’s new rule making millions of workers eligible for overtime pay as the president’s “most significant action on behalf of middle-class paychecks.” The rule boosts the threshold salary level under which salaried employees must be paid overtime (OT) from $23,660 a year to $47,476. Regrettably, though, and as the Association of Farmworker Opportunity Programs (AFOP) is quick to point out, the Nation’s farmworkers are once again left out of needed reform. The only unanswered question remains “Why?”
According to the CBPP, the new rule will directly affect 4.2 million workers. The Department of Labor says that is the number of salaried workers newly eligible for overtime pay. That is, their weekly salary stands between the current and the new threshold, between $455 and $913. CBPP argues that not everyone in that range will end up working overtime — though about 20 percent regularly do so — but if they do, they will now be eligible for the OT premium.
The Department of Labor also believes the new rule will also indirectly affect 8.9 million workers. These are also workers who earn between the old and the new thresholds, but the difference between them and the directly affected group is that these workers should already be getting overtime pay, but are not. The rules state that when someone’s duties at work are such that they are not bona fide exempt workers, they should be covered by OT. These workers tend to really not manage or supervise other workers — they are not recognizable as executives, professionals, or administrators — and thus should be non-exempt. Now, because their pay is under the new threshold, there should be no more ambiguity about their coverage status. That is about 8.5 percent of employment, affected directly or indirectly, says CBPP.
The Center concludes its analysis that the Administration’s action is a progressive change that was a long-time coming, one that will deliver a boost in pay to some workers and relief from unpaid overwork for others. It will transfer a relatively small amount of the nation’s wage bill from employers to workers, and in doing so, restore the purpose of a labor standard that is as important now as it was when it was first introduced in the 1930s.
But behind all the headlines is a strange fact about the U.S. job market that the new rule largely left unchanged: a huge list of American jobs are specifically exempt from overtime, most notably in AFOP’s case farmworkers. The Politico newspaper has reported that the administration’s overtime regulation estimates that up to 4.5 million workers fall into this category, including up to 900,000 in agriculture work.
According to Politico, some jobs are exempt for obscure reasons dating back to the 1930s, but there’s one big shift that has left some workers out in the cold. Decades ago, legal protections for many of them seemed less important—even undesirable—because they had the backing of powerful labor unions to negotiate wages and safe working conditions on their behalf. The decline of unions, however, has left such workers unprotected in the modern labor force, covered neither by the law nor by a strong union contract.
The overtime exemptions are as old as the underlying Fair Labor Standards Act of 1938 (FLSA). A host of political compromises left some workers out of the overtime requirement. Historians generally attribute the exemption for farmworkers to considerations based on race and the need to get the support of Southern lawmakers.
For other occupations, though, the exemptions have a more surprising origin: labor unions did not want those workers covered. Politico reports that many labor leaders worried the FLSA would limit their ability to collectively bargain with employers. For that reason, many heavily unionized industries, like trucking, are exempt from overtime regulations to this day; in the 1930s, the drivers just did not need the labor protections because their union was very strong.
When the FSLA was passed in 1938, 29 percent of all non-agricultural workers were in a union. That number peaked in 1954 at 34.7 percent. But today, it has plunged—just 7.5 percent of non-farm employees were unionized in 2015. Yet, the carve-outs remain, leaving millions of workers unprotected either by unions, or by federal overtime law.
The exemptions for the industries specifically mentioned in the FLSA—even for outdated reasons—are not something President Obama has the power to fix. They are written into the law, and Congress must act to change the statute, something it shows little appetite to do. State and local governments have attempted to fill some of these holes with labor regulations of their own, but many workers can still fall between the cracks, especially in states with weak labor laws.
The new overtime rule comes amid a broader debate about the future of the labor market, as more and more workers are classified as independent contractors. Under that classification, workers not only do not qualify under overtime and minimum wage laws, they also do not receive benefits like health insurance, pay into worker’s compensation and unemployment insurance, and are not covered my most anti-discrimination statutes.
Policymakers are grappling with how to ensure workers are protected in this changing work environment. Some have proposed a portable benefit package that accrues based on hours worked without ties to a singular employer. Two former Obama administration officials suggested a third worker classification may be needed for workers whose jobs do not fit neatly as either a traditional employee or independent contractor.
Politico contends that the future of overtime is intricately tied into these ideas, especially if the number of independent contractors continues to grow. The president’s new rule is a reminder that the labor laws of the 1930s may need a much deeper updating in the years ahead.
Readers can find TEN 36-15 — Department of Labor Wage & Hour Division (WHD) Overtime Final Rule – in the ETA Advisory database and at: https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=9467
From the Desk of the AFOP Executive Director (July)
/in AFOP, From the Executive Director's Desk /by AFOP CommunicationsTips to prevent suffering from heat stress!
/in AFOP, Health & Safety Programs /by AFOP CommunicationsZika Virus: The New Pandemic?
/in AFOP, Health & Safety Programs, Newsroom /by AFOP CommunicationsWith DOL Support, AFOP Brings Peer Best Practices Sharing
/in Member News /by AFOP CommunicationsRural Employment Opportunities (REO), a statewide non-profit in Helena Montana, participated in the AFOP Peer Best Practices Sharing Program in April. Individuals from the NFJP programs in Texas and Arkansas flew into Helena along with AFOP Workforce Development Director Katy Nelson from AFOP headquarters in Washington, DC.
In the last two years, REO has had an almost complete turn over in staff including the executive director, program manager, CFO and most of the employment and training case managers so there was a huge gap in historical knowledge and operational practices. It was extremely valuable to sit down with knowledgeable colleagues and be able to ask questions about how their programs operate. We were able to discuss the new WIOA funding and regulations as well as ask about database issues, recruitment and where to find needed resources. In addition, we were able to validate some of our own processes and procedures. We brought all of our staff in from across the state and they were able to get the “whys” behind some of the regulations and learn how the NFJP program has changed over the years.
One of the most valuable things about the program beyond the depth of knowledge these folks had, was the ability to really get to know them and feel like there was a place to go to get answers. The genuine concern and willingness to help that was brought to the table makes this an extremely valuable program to all grantees.
Reported by Jami Anderson Lind, Executive Director at REO Montana
Peer Best Practice Sharing and Review participants also gathered in Oklahoma City, Oklahoma for a demonstration of ORO Development Corporation’s electronic case management system and its integration with a paperless office system. Participants spent two days talking to systems experts and ORO program staff to learn about their experience transitioning to a paperless systems, and the ways the systems have been beneficial to their operation and client services.
One participant reported, “I was happy to see how the electronic system workout for another organization and see their results. It was important to see how the filing system has the capability to have it work for your organizations style.” Another said, “A major takeaway is that change can always be challenging. I think training is a challenge, getting everyone used to a new process. I think it will be a big job because of the variety of programs we work with, but I think, long term, it will save time, money and obtain good results.” Another participant stated about the setting, “I have sat in classes at different conferences about CERTSS; it was nice to see how it actually works by having an actual case manager work with it. I learned about current barriers that ORO case managers face when they are out in the fields that could also be a potential barriers for our staff in regards to internet connectivity.”
If you are interested in participating in peer best practices sharing and review, please contact AFOP Workforce Development Director Katy Nelson at nelson@afop.org.
Persistence Pays Off For NFJP Client
/in Success Stories /by AFOP CommunicationsPreviously published in the Proteus May 2016 Newsletter
After a series of referrals and one phone call, Tylar H. contacted the Proteus Inc. office in Kokomo, Indiana. He was unsure if Proteus could help him, but was willing to take the chance.
However, after paying his way through college, Tylar simply did not have the funds to pay for the additional costs of living, equipment, and supplies he needed for the State Police Academy, as well as his upcoming career costs. His hard work and efforts seemed to simply not be enough.
Because of his farmworker and life experiences, he was eligible for the National Farmworkers Job Program. His excitement and gratitude for the funding that would allow him the ability to obtain the gear and supplies he needed was incredible. While information gathering and contact was difficult given the intensity of the academy, his approval was finalized and he became a Proteus client. Through a series of Sunday afternoon conversations and meetings, he received funds that have allowed him to progress in his education, continue in the academy, and pay his travel expenses, as well as purchase the supplies that he will need. He will graduate and be inducted into the Indiana State Police in May 2016.
Tylar is attending school to earn a position on the Indiana State Police force. Here he looks out over the fields that made him.
His drive to progress himself and his community is amazing and is instantly recognizable. The fact that he has been able to development a goal, maintain the steps in order to accomplish his goal, and achieve so much in such a short period of time has allowed him to develop into an amazing individual who will serve his community and state well. His strength and endurance through work and school allowed him to identify with the public, which he so wishes to protect and serve.
The work of Proteus employees on Tylar’s behalf is a testament to the life changing ability that Proteus has on the farmworkers and their lives. Additionally, the changes that Proteus provides goes beyond out clients and extends throughout our community, state, and the future of the many individuals that will be touched by our clients achievements.
New OT Rule Raises Question: Why Not Farmworkers?
/in From the Executive Director's Desk /by AFOP CommunicationsFrom the Desk of the Executive Director
Daniel J. Sheehan
AFOP Executive Director
The Center for Budget and Policy Priorities (CBPP) recently praised the Obama Administration’s new rule making millions of workers eligible for overtime pay as the president’s “most significant action on behalf of middle-class paychecks.” The rule boosts the threshold salary level under which salaried employees must be paid overtime (OT) from $23,660 a year to $47,476. Regrettably, though, and as the Association of Farmworker Opportunity Programs (AFOP) is quick to point out, the Nation’s farmworkers are once again left out of needed reform. The only unanswered question remains “Why?”
According to the CBPP, the new rule will directly affect 4.2 million workers. The Department of Labor says that is the number of salaried workers newly eligible for overtime pay. That is, their weekly salary stands between the current and the new threshold, between $455 and $913. CBPP argues that not everyone in that range will end up working overtime — though about 20 percent regularly do so — but if they do, they will now be eligible for the OT premium.
The Department of Labor also believes the new rule will also indirectly affect 8.9 million workers. These are also workers who earn between the old and the new thresholds, but the difference between them and the directly affected group is that these workers should already be getting overtime pay, but are not. The rules state that when someone’s duties at work are such that they are not bona fide exempt workers, they should be covered by OT. These workers tend to really not manage or supervise other workers — they are not recognizable as executives, professionals, or administrators — and thus should be non-exempt. Now, because their pay is under the new threshold, there should be no more ambiguity about their coverage status. That is about 8.5 percent of employment, affected directly or indirectly, says CBPP.
The Center concludes its analysis that the Administration’s action is a progressive change that was a long-time coming, one that will deliver a boost in pay to some workers and relief from unpaid overwork for others. It will transfer a relatively small amount of the nation’s wage bill from employers to workers, and in doing so, restore the purpose of a labor standard that is as important now as it was when it was first introduced in the 1930s.
But behind all the headlines is a strange fact about the U.S. job market that the new rule largely left unchanged: a huge list of American jobs are specifically exempt from overtime, most notably in AFOP’s case farmworkers. The Politico newspaper has reported that the administration’s overtime regulation estimates that up to 4.5 million workers fall into this category, including up to 900,000 in agriculture work.
According to Politico, some jobs are exempt for obscure reasons dating back to the 1930s, but there’s one big shift that has left some workers out in the cold. Decades ago, legal protections for many of them seemed less important—even undesirable—because they had the backing of powerful labor unions to negotiate wages and safe working conditions on their behalf. The decline of unions, however, has left such workers unprotected in the modern labor force, covered neither by the law nor by a strong union contract.
The overtime exemptions are as old as the underlying Fair Labor Standards Act of 1938 (FLSA). A host of political compromises left some workers out of the overtime requirement. Historians generally attribute the exemption for farmworkers to considerations based on race and the need to get the support of Southern lawmakers.
For other occupations, though, the exemptions have a more surprising origin: labor unions did not want those workers covered. Politico reports that many labor leaders worried the FLSA would limit their ability to collectively bargain with employers. For that reason, many heavily unionized industries, like trucking, are exempt from overtime regulations to this day; in the 1930s, the drivers just did not need the labor protections because their union was very strong.
When the FSLA was passed in 1938, 29 percent of all non-agricultural workers were in a union. That number peaked in 1954 at 34.7 percent. But today, it has plunged—just 7.5 percent of non-farm employees were unionized in 2015. Yet, the carve-outs remain, leaving millions of workers unprotected either by unions, or by federal overtime law.
The exemptions for the industries specifically mentioned in the FLSA—even for outdated reasons—are not something President Obama has the power to fix. They are written into the law, and Congress must act to change the statute, something it shows little appetite to do. State and local governments have attempted to fill some of these holes with labor regulations of their own, but many workers can still fall between the cracks, especially in states with weak labor laws.
The new overtime rule comes amid a broader debate about the future of the labor market, as more and more workers are classified as independent contractors. Under that classification, workers not only do not qualify under overtime and minimum wage laws, they also do not receive benefits like health insurance, pay into worker’s compensation and unemployment insurance, and are not covered my most anti-discrimination statutes.
Policymakers are grappling with how to ensure workers are protected in this changing work environment. Some have proposed a portable benefit package that accrues based on hours worked without ties to a singular employer. Two former Obama administration officials suggested a third worker classification may be needed for workers whose jobs do not fit neatly as either a traditional employee or independent contractor.
Politico contends that the future of overtime is intricately tied into these ideas, especially if the number of independent contractors continues to grow. The president’s new rule is a reminder that the labor laws of the 1930s may need a much deeper updating in the years ahead.
Readers can find TEN 36-15 — Department of Labor Wage & Hour Division (WHD) Overtime Final Rule – in the ETA Advisory database and at: https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=9467
2016 Annual Art & Essay Contest Now Open!
/in Children in the Fields Campaign /by AFOP CommunicationsThrough AFOP’s Migrant & Seasonal Farmworker Children Essay & Art Contests, each year we are able to collect hundreds of essays and works of art from students across the country, giving farmworker children the opportunity to showcase their heartwarming and compelling stories on the national stage and to empower them through our contests as they find the power in their voice. Our mission is to show America the realities our farmworker families face through the eyes of their children and to spur action to provide better educational support for our farmworker children.
Winners are selected by a diverse panel of national community partners, including the American Federation of Teachers, National Consumers League, Human Rights Watch, and the National Migrant & Seasonal Head Start Association. Names of winners and winning entries will be published in AFOP’s Washington Newsline and the best posters may be compiled to be presented to key members of Congress. All contact information of participants will be kept confidential.
In addition to providing these children with small scholarships to help cover their educational expenses, our first prize winners are invited to be recognized at AFOP’s National Conference (#AFOP2016) on September 21, 2016 in Arlington, Virginia. Coming to our national conference to accept their award is, as one contestant described, “an inspiring, life-changing experience.”
Winners will be notified via telephone or by mail by Wednesday, August 31, 2016. For more information or to review the contest guidelines, please contact Amber Lee James at 202.384.1767 or james@afop.org.
About the Children in the Fields Campaign:
The Children in the Fields Campaign is a project of the Association of Farmworker Opportunity Programs (AFOP), a national federation of non-profit and public agencies that provide job training and services for America’s farmworkers. The campaign strives to improve the quality of life of migrant and seasonal farmworker children by advocating for enhanced educational opportunities and the elimination of discriminatory federal child labor laws in agriculture. For additional comment or an interview, please contact Daniel Sheehan, Executive Director, at 202.384.1754 or sheehan@afop.org.
Closing the Loopholes, Opening Opportunities
/in AFOP, NFAW /by AFOP CommunicationsBy Amber James, Program Analyst for Workforce Development
“A nation can neither achieve nor sustain prosperity on the backs of its children. In the global economy, the exploitation of children must not be tolerated under any circumstances or for any reason. When children are exploited for the economic gains of others, everybody loses–the children lose, their families lose, their country loses, the world loses. When even one child is exploited, every one of us is diminished.” – Former U.S. Senator Tom Harkin
In recognition of National Farmworker Awareness Week, the Association of Farmworker Opportunity Programs (AFOP) would like to raise awareness about the scourge of child labor in U.S. agriculture.
Around the world, agriculture remains the most important sector where 98 million, or 59%, of child laborers (ages 5-17) work, as well as the most dangerous occupation with a fatality rate of 80% for children under 15. In the United States, there are approximately 2.5 million employed farmworkers, and about half a million are under 18 years of age. The majority of child farm workers are unpaid members of migrant and seasonal farmworker (MSFW) families accompanying their parents in the fields to increase earnings.
MSFW and their children suffer greater rates of fatality, mortality and morbidity than most of the American populace due to a combination of poverty, hazardous working conditions, limited health care access, and slack labor regulations. The National Institute for Occupational Safety and Health (NIOSH) reports that an estimated 33,000 children have farm-related injuries each year in the U.S., and more than 100 of these children die as a result of their injuries. The leading causes of fatal injuries to youth were the result of children being directly involved in farm work.
The Human Rights Watch, Pesticide Action Network (PAN-NA), farmworker advocates and public health experts have also documented farmworkers’ elevated risks of chronic diseases linked to chemical poisonings, including Green Tobacco Sickness, cancer, birth defects, and learning disabilities. Of course, MSFW youth face far greater health risks than their adult counterparts from pesticide and nicotine exposure, unsanitary facilities, musculoskeletal injuries, long work hours, extreme weather exposure, hazardous equipment and machinery, and even sexual and verbal abuse.
Moreover, MSFW youth are continually put at a disadvantage, and are seldom able to access educational and extracurricular opportunities more easily obtained by other children. These children often become entrapped in a cycle of poverty.
Although incredible headway has been made over the last few decades in publicizing the plight of America’s ‘hidden workers’ and advocating for greater corporate social responsibility and fairer labor standards, our regulatory system has still failed to protect MSFW youth. There needs to be greater commitment to closing loopholes in U.S. labor law, and facilitating the extension of child labor protections to U.S. agriculture.
During this year’s National Farmworker Awareness Week, we again draw the public’s attention to an antiquated loophole in our own food system –the agricultural exemption in the Fair Labor Standards Act (FLSA) of 1938. The FSLA loophole still permits children as young as 12 to work unlimited hours on a farm outside of school, and children at least 16 years of age to perform hazardous work restricted to adults in other industries. Regardless of the age, the work jeopardizes the physical, mental, and social development of child farm workers, and continually exposes them to pitiable conditions that would be deemed undignified and unlawful in any other U.S. industry or country (as most countries have adopted ILO-based legislation that prohibits or places severe restrictions on child labor).
AFOP reiterates our commitment to eliminating the legal discrimination that permits the present situation by closing the FSLA loophole that allows children to be employed in agriculture at the expense of already being disadvantaged. We envision a future in which MSFW youth have enhanced educational opportunities, adequate housing and bathrooms, potable drinking water, improved health care access, and are able to fully participate in the “American Dream.”
On a positive note, AFOP would like to applaud the recent success of the Child Labor Coalition (CLC), of which we are a long-standing member, in helping close a draconian loophole in the U.S. Tariff Act of 1930, which allowed the import of goods and commodities produced by forced adult and child labor into the country when domestic production trailed demand. According to the Bureau of International Labor Affairs (ILAB), approximately 21 million people around the world are victims of forced labor, and around 168 million are child laborers – 85 million engaged in hazardous work.
In February, President Obama signed the “Trade Facilitation and Trade Enforcement Act” (Public Law 114-125) into law, pressuring both U.S.-based companies and global supply networks to take greater responsibility in monitoring their supply chains and ensuring that labor practices do not violate the principles of decent work or the rights of a child (which the United States has yet to ratify). The law will target 136 goods from 74 countries based on recommendations from the U.S. Department of Labor.
The closure of the loophole, after 86 years, indicates the U.S. Government’s reconfirmed interest in curtailing American involvement in questionable labor practices, and should have significant implications for effectuating greater compliance with ethical standards. Unfortunately, the legislation fails to acknowledge the existence of unfair and exploitative labor practices on American soil, and may do little to protect the hidden workers and children who harvest the fruits and vegetables that end up on our plates every day.
There has been an increased urgency in the United States and international community to combat the worst forms of agricultural labor around the world, but where is acknowledgement of and uproar over the shameful working conditions thousands of MSFW endure in our own country? How much longer until they also have federal social protections?
Lifting Others Out of Poverty
/in AFOP, NFAW /by AFOP CommunicationsBy: Kathleen Nelson, Director of Workforce Development
March 30, 2016
A Small Act of Kindness Can Save A Farmworker’s Life
/in AFOP, NFAW /by AFOP CommunicationsBy: Melanie Forti, Director of Health & Safety Programs
Our lives are so busy now days that we forget to sit back, think, and be grateful for those hard working hands that harvest our food. Unfortunately, agricultural workers are one of the most forgotten and unacknowledged workers in the United States. Every day over 2.5 million farmworkers harvests our nation food, but in order to do so they face many challenges – from health-related issues, poor living conditions, and sexual abuse to wage theft, and limited access to health & human services.
Farmworkers put their health at risk each day by being exposed to toxic chemicals and working in oppressive weather conditions. Due to the vigorous physical labor, pesticide exposure, and dangerous equipment, agricultural workers rank among the three most hazardous jobs in the U.S. In addition, farmworkers are at great risk of respiratory and dermatological illnesses, dehydration, heat-related illnesses, accidents with dire physical impact, as well as chronic muscular-skeletal pain.
Thanks to their hard work, we are able to have food on our tables, when sometimes they cannot afford to. During the National Farmworker Awareness Week, we can all do a small act of kindness by donating a long-sleeve shirt that will help agricultural workers mitigate exposure to pesticides and reduce the risk of suffering from a heat-related illness.
This year, AFOP’s Health & Safety Programs is holding a National Long-Sleeve Shirt Drive with over fifty drop-off locations nationwide from March 26 – April 2nd. To learn more about this event and where to drop your spare shirt please visit: https://afop.org/health-safety/nfaw/ or contact AFOP’s Health & Safety Programs Director, Melanie Forti at forti@afop.org.
The donated long-sleeve shirts will be distributed among the farmworker community during pesticide safety trainings, heat stress prevention trainings, health fairs, clinics, and in non-profit organizations.
Once National Farmworker Awareness Week has ended, let’s not forget those that harvest our nation’s food. Happy #NFAW2016 #GotFoodThankAFarmworker