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April 2021, Volume 27, Number 2

Northeast, Midwest, Northwest

Some 46 million or 14 percent of US residents live in rural areas, defined as counties that do not include a place with more than 50,000 residents. As counties acquire places with more than 50,000 residents, they are reclassified as metro.

OMB may change the definition of metro to counties with population centers of 100,000 or more. Doing so would reclassify 251 metro counties as non-metro and add 18 million people to the nonmetro population.

Maine. Backyard Farms LLC in March 2021 agreed to pay $245,000 in back wages to US workers who were displaced by H-2A workers. Backyard used temporary help agencies to recruit US workers for its tomato greenhouses, and stopped using agency workers when it switched to H-2A workers. Backyard paid some US workers in corresponding employment lower wages than the H-2A workers, which violated H-2A regulations.

New York. An attorney explained the ?fake recruitment? required of employers seeking to sponsor foreigners to fill year-round farm jobs: ?You really want the foreign worker. The reason you?re recruiting and placing ads is basically just to satisfy legal requirements and get through the process. You don?t want a U.S. worker to apply, which poses an obstacle to hiring the foreign worker. It sounds odd, but that?s the case.?

Pennsylvania. The NLRB issued an advisory memo in December 2020 that found two employees of Agri-Kind, a cannabis growing operation in Chester were not protected by the NLRA. Two employees complained about their supervisor?s union-related comments, but their charge was dismissed because they were deemed agricultural workers who did not ?significantly transform the natural product from its raw state [and instead were] engaged in the primary agricultural functions of harvesting, pruning, and sorting of plants.? Some 20 states allow medical marijuana to be grown and sold, and 15 allow recreational marijuana to be grown and sold.

Colorado. Senate Bill 21-087 would grant agricultural workers the right to unionize and require them to be paid at least the state?s minimum wage of $12.32 an hour in 2021, plus overtime pay after 12 hours a day and 40 hours a week.

Supporters estimate that half of the state?s farm workers are not covered by the federal Fair Labor Standards Act, and estimate that SB 21-087 would cover 40,000 farm workers in the state. Farm employers argue that they cannot afford to pay higher wages and overtime.

Michigan. Former gymnastics coach John Geddert in February 2021 committed suicide after being charged with 20 counts of human trafficking, defined as the use of ?force, fraud or coercion? to obtain labor or a commercial sex act. Exploiting one person to benefit another is usually associated with domestic servitude, forced labor and sex trafficking. Geddert was charged with the human trafficking of a minor for forced labor because he benefitted financially from the successes of the athletes he coached.

Mississippi. Two South Africans hired as agricultural equipment operators on H-2A visas by Kyle Mills in Winona alleged in March 2021 that they drove tractor-trailer trucks that delivered grain and fertilizer to farms in Mississippi and other states. Mills paid them the state?s AEWR of $11.33 an hour rather than the prevailing OES wage of $18.25 for heavy truck drivers.-2 Southern Migrant Legal Services sued on behalf of the workers for back wages and inbound travel costs.

Texas. Texas farmers lost an estimated $600 million worth of crops due to severe winter weather in February 2021. Half of the farm losses were from frozen citrus and a quarter from vegetables, mostly in the Rio Grande Valley and north of Laredo, an area known as the state?s winter garden region.

Texas farm revenues were $21 billion in 2019, including $14 billion or two-thirds from animal agriculture and $7 billion from crops. The leading commodities included cattle and calves, $8.4 billion; dairy, $2.6 billion; broilers, $2.2 billion; cotton, $2 billion; and corn $1 billion.

Texas is the second most populous state, with 29 million residents compared to 40 million in California, and has been growing fast due to lower living costs and taxes. However, cold weather in February 2021 demonstrated that the state?s light-touch regulatory approach did not require energy generators to protect vital infrastructure, leaving many residents without electricity and water.

Texas is the leading producer of oil and gas, but gets a quarter of its power from wind turbines, which is more than the next three states combined, Oklahoma, Iowa and Kansas. Many Texas wind farms saw their blades freeze in February 2021, so they were unable to deliver power that normally generates revenue of $25 a megawatt, forcing some wind farms to pay $9,000 a megawatt for replacement power, bankrupting them. Climate change may lead to hotter summers, colder winters and extreme weather events for which private industries subject to light-touch regulation are unprepared.

Arizona. Several cities on the Mexico-US border including Yuma had high rates of Covid infection in winter 2021. An estimated 40,000 farm and farm-related workers are employed in Yuma county during the winter months to produce lettuce and other vegetables, including many who commute daily from homes in Mexico. Most cross-border commuters are bussed to fields with one worker per seat and plastic sheets between rows.

Oregon. The state?s OSHA, which reported 320 registered farm worker housing sites in 2021, enforces regulations that require bunk beds to be at least six feet apart and other sleeping arrangements to provide at least 50 square feet per worker. Employers want the state to return to pre-pandemic housing rules. They say that enforcing pandemic sleeping regulations will push more workers into unregulated and informal housing, inducing some to sleep in cars.

Washington. Farm employers in February 2021 sued the Departments of Health and Labor & Industries, charging that HLI issued emergency Covid-safety rules that are unworkable. The employers? suit noted that Covid-safety rules for schools and construction were modified as more was learned about Covid, but HLI did not modify farm worker safety regulations.

Employers said it was impossible to ensure that farm workers were always within one hour of a hospital emergency room and that restricting farm worker housing occupancy to half of normal levels for vaccinated farm workers is unnecessary. Employers want the state to give farm workers priority for the Covid vaccine so that H-2A workers can be housed in bunk beds as they were before the pandemic.

A federal judge in March 2021 barred DOL from certifying jobs that traditionally paid piece-rate wages, such as picking cherries for $0.20 a pound or blueberries for $0.50 a pound, that offered only an hourly wage guarantee. DOL certified some hourly-wage-only jobs after many employers followed the advice of some associations and reported that they offered an hourly wage guarantee. These employers did not report their piece-rate wages, so that prevailing piece rates could not be determined.

Judge Salvador Mendoza Jr noted that the minimum wage or AEWR is an hourly wage guarantee for all jobs. He ordered DOL to require employers to guarantee the piece rates from the last valid prevailing wage survey until new surveys are completed.

Employers pay piece-rate wages when it is easier to monitor worker output than worker effort, as when workers pick fruit from trees or bushes. Piece-rate wages give workers an incentive to work fast without close supervision, and in Washington enable some apple and cherry workers to earn $20 to $25 an hour.

Guaranteeing only an hourly wage would likely accelerate the shift from US to H-2A workers, since H-2A but not US workers are willing to accept jobs that offer only an hourly wage. DOL?s willingness to approve job orders that in the past offered piece-rate wages and hourly guarantees, and now offer only an hourly-wage guarantee, could adversely affects US workers by reducing their hourly earnings, which the judge found DOL must avoid.

Dairy farms began to pay overtime wages to workers January 1, 2021 after the state Supreme Court ruled 5-4 in November 2020 that the state constitution requires overtime pay for workers who are employed in dangerous occupations. Many dairies adjusted work schedules after overtime pay was required to minimize their overtime-wage bills.

Other farm employers pushed for a state law to phase in overtime pay for farm workers and to block worker suits seeking three years of back overtime pay. SB 5172 would phase in overtime pay at 1.5 times the normal wage after 55 hours a week beginning in January 2022, after 48 hours in January 2023, and after 40 hours in January 2024.

Great Columbia Berry Farms in February 2021 agreed to pay $350,000 to four women who were raped and harassed by a supervisor at the 136-acre blueberry farm between 2012 and 2019. The women suffered retaliation after they complained; three were fired.

Alaska. Trident Seafoods closed its plant in Akutan in the Aleutian Islands for a month in January-February 2021 after 40 percent of the 700 workers in the largest US seafood processing plant contracted Covid. Trident processes pollack, cod, and crab in Akutan.

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