Punching In: New Research Finds Scarce DOL Enforcement on Farms

Monday morning musings for workplace watchers.

Agricultural Enforcement from DOL|Public Comments on Pregnancy Rules

Rebecca Rainey: The federal Wage and Hour Division currently has the capacity to investigate fewer than 1% of farm employers per year, underscoring the agency’s struggles to enforce labor law and reach some of the most vulnerable workers.

US Labor Department wage investigations on farms have dropped by more than 60% over the past 22 years, and have largely focused on violations of the H-2A visa program for seasonal migrant farmworkers, the left-leaning Economic Policy Institute study found.

“Federal labor standards enforcement efforts to protect farmworkers have in fact slid backward, with the number of investigations falling even further behind the already record-low levels during the years of the Trump administration,” Daniel Costa and Philip Martin wrote for EPI.

In fiscal year 2022 WHD closed only 879 farm investigations, a record low for the division, according to the report. However, the data doesn’t include cases that are still pending and may not be fully representative of the division’s work at the time.

Labor advocates and the Biden administration have called on Congress for help, attributing the decline to a lack of resources and attrition among staff. The wage division is tasked with protecting over 143 million workers at more than 9.8 million workplaces across the country.

“The law in the books is rarely the law in the fields. Wage theft and other violations of labor law are endemic in American agriculture,” Antonio De Loera-Brust, communications director for United Farm Workers, said in an email. “It is paramount that DOL have the funding and capacity to adequately and proactively defend farm worker’s rights and uphold U.S. labor law.”

“I think what you see overall is just very little enforcement” on farms regardless of whether its under a Republican or Democratic administration, added Debbie Berkowitz with Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor.

Management-side attorneys said it’s important to put the data in perspective with other enforcement conducted by the wage division.

Paul DeCamp, a former Wage and Hour administrator now a management-side attorney with Epstein Becker & Green PC, noted that the investigation rate for farm employers cited by the report is “actually not out of line with the proportion of workplaces generally that get investigated over the course of the year.”

“In fact, the numbers would be lower for non agriculture,” he said in an interview.

Kristi J. Boswell, who advises farm employers at Alston & Bird, also said that despite what the data may show, the Biden DOL has made its presence known in the farming industry.

“I will say from the agriculture employer perspective, there is a sense throughout the country that enforcement is strong, active, and a lot of employers are having more interaction with the Department of Labor, Wage and Hour than they have in the past,” she said.

In response to the report, the DOL said in an emailed statement that it’s committed to protecting workers on farms and “collaborates with diverse stakeholders to provide outreach and education and vigorously enforces the workplace protections of farmworkers.”

Farm workers harvest lettuce in a field outside of Brawley, Calif., January 2017.

Photographer: SANDY HUFFAKER/AFP via Getty Images

Riddhi Setty: New EEOC rules governing accommodations for pregnancy at work have already received a lot of public input, largely owing to a small but politically contentious piece of the proposals.

As of Aug. 23, less than two weeks after the publication of the Equal Employment Opportunity Commission’s proposed regulations for the Pregnant Workers Fairness Act in the Federal Register, the agency had received and published more than 7,700 comments from stakeholders.

The lion’s share of these comments center on criticizing the EEOC’s treatment of abortion in the draft, with at least 6,961 of the comments using similar language from a form letter drafted for members and posted online by advocacy organization CatholicVote.com, according to a Bloomberg Law analysis.

The EEOC rules listed abortion as a medical condition related to pregnancy under the PWFA, making those who undergo the procedure eligible for leave and other reasonable accommodations. The move generated some criticism, though the agency has maintained its inclusion of abortion is consistent with the EEOC’s longstanding interpretation of Title VII of the 1964 Civil Rights Act.

The sheer volume of comments is a stark contrast to the number received on other recent EEOC initiatives. The agency’s draft strategic enforcement plan published in January of this year, for instance, received only 48 comments.

Public criticism of the EEOC’s draft regulations has so far primarily come from religious groups, as opposed to business groups, like the US Chamber of Commerce, that have often been vocal in opposing other commission-issued guidance.

But it’s possible, even likely, that the EEOC won’t pay the growing deluge of comments much attention at all. The commission has remained consistent in its interpretation of abortion as a “related medical condition,” and employment attorneys say that the likelihood that public pushback will prompt them to change their minds is low.

CatholicVote’s Director of Government Affairs Tom McClusky told Bloomberg Law he’s also concerned that if the language of the comments replicates parts of the CatholicVote form letter word for word, then the agency may only count it as one comment instead of thousands of separate comments.

Regardless, even Republican commissioners haven’t stepped forward to advocate for changes to the proposed regulations.

The commission vote to approve the PWFA regulations was notably bipartisan, with Republican Andrea Lucas, who has previously targeted corporate abortion travel policies, voting in favor.

—with assistance from Andrew Wallender

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