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October 2019, Volume 25, Number 4
Northwest, Northeast, Midwest
New York. The Farm Laborers Fair Labor Practices Act (S 6578) gives farm workers the right to organize into unions without employer interference and requires overtime pay after 60 hours of work a week beginning January 1, 2020. A provision of the state Employment Relations Act excluding farm workers from union protections was ruled unconstitutional by a state appellate court May 23, 2019.
S 6578 includes a no-strike provision and card check, meaning that a union can be recognized as the bargaining representative for workers without a secret ballot election. S 6578 also gives union organizers the right to enter farms to talk to workers about their union rights.
New York in June 2019 enacted a law that allows unauthorized foreigners to obtain driver's licenses without providing social security numbers. Erie County Clerk Michael Kearns sued to block implementation of the law, asserting that issuing driver's licenses to unauthorized foreigners violated state law. The US Department of Justice is likely to support Kearns suit. Thirteen states including New York and California grant driver's licenses to unauthorized foreigners.
Vermont. Almost 70 percent of Vermont's farm sales are dairy products, and many of the estimated 7,000 workers employed on the state's dairies are unauthorized. Vermont borders Canada, so CBP agents may question anyone within 100 miles of the international border if they have a reasonable suspicion that the person may be unauthorized. Agents may enter private property without a warrant within 25 miles of the border.
Over 90 percent of Vermont's residents live within 100 miles of the border, and over 94 percent are white, raising questions about racial profiling when Hispanic farm workers are arrested. Advocacy group Migrant Justice says that the CBP targets Hispanic farm workers.
Maine. Lobster is the most valuable seafood from Maine, where 4,000 lobstermen with 800,000 traps try to catch the bottom-living shellfish. Governments charged with protecting Atlantic right whales who are sometimes trapped by the lines attached to buoys that mark the location of the traps want fewer lines, which means fewer traps or more traps attached to each line.
There are believed to be about 400 Atlantic right whales in the US Gulf of Maine and Canada's Gulf of St. Lawrence, including 100 breeding females. About 30 right whales were found dead between 2017 and 2019, two-thirds in Canadian waters.
Minnesota. Featherstone Farms has an apartment building in Rushford to house 21 H-2A workers from Guanajuato. Featherstone has been hiring H-2A workers for two decades, and most of Featherstone's H-2A workers are related to each other.
Michigan. The tart Montmorency cherry industry centered around Traverse City is struggling with competition from dried cherries imported from Turkey, which sells dried cherries in the US for less than $1 a pound compared with the $4 a pound US farmers say they need for dried cherries. Dried, canned and frozen tart cherries can be stored. The large inventory of US cherries stored in the hope of higher prices are instead lowering prices.
Michigan produced 300 million pounds of tart cherries worth $56 million in 2018; the state produces two-thirds of US tart cherries. Washington dominates US sweet cherry production, and produced most of the 344,000 US tons worth $638 million in 2018.
Kentucky. AppHarvest plans a 60-acre, 2.8 million square-foot greenhouse in Morehead in eastern Kentucky, within an day's drive of 70 percent of US residents. What is expected to be the largest greenhouse in the US will use Dutch greenhouse technology and 285 employees to produce 45 million pounds of organic produce a year. Dalsem, which has built greenhouses for vegetable and flower production in 52 countries, provided the greenhouse plans and technology and Philips the LED light system.
AppHarvest is supported by venture capital and received about $2 million in infrastructure investment in roads from the state.
Other greenhouses are also being built in the eastern US to provide fresh produce for consumers. Canada's Mucci Farms and Mastronardi Produce are building tomato greenhouses in Ohio. A third of the fresh tomatoes consumed in the US were from greenhouses in 2017; many were imported from Canada.
Washington. Washington has 240 blueberry producers with 20,000 acres that produced 140 million pounds of blueberries in 2019. About 70 percent of these blueberries are harvested by machine. The largest 20 blueberry growers produce about three-fourths of the state's blueberries.
Zirkle Fruit disputed an Employment Security Department-DOL determination that the prevailing wage for hand-picking blueberries rose from $0.50 to $0.75 a pound on July 24, 2019. The ESD said that it surveyed 54 growers who had an average 33 workers to determine the $0.75 prevailing piece rate; Zirkle did not participate in the study.
Zirkle was approved to employ 2,750 H-2A workers at a piece rate of $0.50 a pound and a minimum wage of $15.03 an hour to harvest its 850 acres of blueberries. Zirkle said its employees picked 9.6 million pounds of blueberries by July 31, 2019 for total wages of $4.7 million at the 50-cent a pound rate, earning an average $17.13 an hour.
A federal judge allowed Zirkle to continue to pay the $0.50 a pound piece-rate to pick the remaining five million pounds of blueberries, but Zirkle must put the extra $0.25 a pound demanded by DOL into a trust fund until the case is decided. Zirkle said that, if the $0.75 rate was upheld, it would switch from hand to mechanical harvesting. Zirkle estimates its profits at $0.25 a pound.
Several apple farms sued DOL after an ESD survey resulted in an increase in the prevailing wage for picking apples planted in high-density orchards from $15.03 to $16 an hour. Evans Fruit farms harvested 194,000 tons or 10.6 million boxes from 8,000 acres of apples in 2018, 7.7 percent of the state's 138 million boxes. Other farms filing suit include McDougall, which harvested 3.3 million boxes of apples in 2018, and Columbia with 1.7 million boxes.
Washington's Supreme Court will hear oral arguments on October 24, 2019 on whether exempting farm workers from 8/40 overtime in 1959 was unconstitutional (Jose Martinez-Cuevas v. DeRuyter Brothers Dairy).
The state Department of Labor and Industries is proposing that all workers who do not earn at least 2.5 times the minimum wage be entitled to overtime pay under 8/40 rules. By 2026, L&I expects anyone who is paid less than $1,536 a week or $79,872 a year to be paid for overtime work, making about 250,000 workers eligible for overtime.