ISOLATED BY FORCE: MIGRANT FARMWORKERS FIGHT FOR ACCESS TO JUSTICE
AND HEALTH CARE IN THE UNITED STATES
Submission regarding the Human Rights to Access Justice, Healthcare, and Information
of Migrant Farmworkers to
the United Nations Universal Periodic Review of
United States of America
Second Cycle
Twenty Second Session of the UPR
Human Rights Council
April - May 2015
This UPR stakeholder report is submitted on behalf of a group of human rights and legal aid organizations
working with migrant farmworkers in the United States. 1
Contact Name: Lauren E. Bartlett
Contact Phone/Email: (202) 895-4556/ [email protected]
I.
Introduction to the Migrant Farmworker Camp Access Issue
This report is respectfully submitted to the U.N. Office of the High Commissioner of Human Rights in
advance of the upcoming second Universal Periodic Review of the U.S. by the group of human rights and
legal aid organizations listed below. By failing to ensure legal aid, healthcare, and other outreach workers
access to migrant farmworkers and their family-members living in employer-provided housing, the
United States is complicit in violating the human rights to access justice, healthcare, and information of
this vulnerable population, and is failing to meet its international human rights obligations to protect
human rights defenders. This report specifically covers U.S. violations of human rights obligations
specifically under the Universal Declaration of Human Rights (UDHR), the International Covenant on
Civil and Political Rights (ICCPR), and the International Convention on the Elimination of All Forms of
Racial Discrimination (CERD).
Between 1 and 3 million year-round and seasonal migrant farmworkers, including at least 100,000
children, are estimated to labor every year in U.S. fields. 2 Most are poor and many live and work in
dangerous and dehumanizing circumstances.3 About 89% of farmworkers are racial minorities (Hispanic
and African American), while 72% of migrant farmworkers are foreign-born and only 30% speak English
well. 4 Approximately 21% of farmworkers live in employer-owned and -provided housing. 5
1
Submitted on behalf of: Center for Human Rights & Humanitarian Law Local Human Rights Lawyering Project; Worker Justice Center of New
York; Sarah Paoletti, Director of the Transnational Legal Clinic at the University of Pennsylvania Law School; Northwest Workers' Justice
Project; Farmworker Justice; Global Workers Justice Alliance; Public Justice Center; Columbia Law School Human Rights Institute; Illinois
Migrant Legal Assistance Project; Texas RioGrande Legal Aid; Southern Poverty Law Center; Student Action with Farmworkers; Hispanic
Affairs Project, HAP; Colorado Legal Services; and Farmworker Advocacy Network.
A group of civil society organizations also submitted a shadow report to the U.N. Committee on the Elimination of Racial Discrimination in 2014,
shadow report to the U.N. Human Rights Committee in 2013, as well as joint complaint to the U.N. Special Rapporteur on extreme poverty and
human rights in 2012 on this same issue of migrant camp access.
2
See, e.g., National Center for Farmworker Health, Farmworker Health Factsheet: Demographics 1 (Sept. 2012), http://www.ncfh.org/docs/fsMigrant%20Demographics.pdf; Christine Ahn, Melissa Moore & Nick Parker, Migrant Farmworkers: America’s New Plantation Workers, 10(2)
BACKGROUNDER (Spring 2004), http://www.acequiainstitute.org/researchreports.html.
3
See generally Oxfam America, Like Machines in the Fields: Workers Without Rights in American Agriculture (March 2004),
http://www.oxfamamerica.org/files/like-machines-in-the-fields.pdf .
4
Findings from the National Agricultural Workers Survey (NAWS) 2007 -2009, http://www.doleta.gov/agworker/naws.cfm; National Center for
Farmworker Health, supra note 2.
5
Southern Poverty Law Center, Who Are Farmworkers? (2010), http://www.splcenter.org/sexual-violence-against-farmworkers-a-guidebook-forcriminal-justice-professionals/who-are-farmworke.
1
Routinely, outreach workers who attempt to provide migrant farmworkers living on labor camps or
ranches in the U.S. with legal assistance, health care, education, and social and other basic services are
denied access altogether or refused meaningful access. Farmworkers’ employers commonly tell outreach
workers to leave the property; 6 accuse outreach workers of trespassing on their property; 7 demand prior
notice before visiting the property; 8 or pressure the outreach workers to break confidentiality and infringe
on the privacy of farmworkers by naming prospective clients who are seeking assistance. 9 Outreach
workers regularly experience harassment, 10 are threatened with arrest. 11 and even threatened with
violence 12 by owners and operators of migrant labor camps. Outreach workers are subjected to police
questioning, ordered to leave the premises, charged with trespass, and placed in handcuffs by local law
enforcement. 13 Farmworkers face threats of deportation; sexual violence14 and violence against security
of person; and inhumane treatment and abuse at the hands of their employers. 15 The near-total control
that some agricultural employers exert over farmworkers who live in their labor camps has been likened
to an “almost slave-master relationship.” 16 A video of outreach workers talking about these issues has
been produced by this group and is available here.
The effects of these abuses are manifold: service providers are discouraged from providing services;
farmworkers’ vital privacy interests and the confidential relationship between service providers and
workers are undermined; and advocates are limited in their ability to identify and serve victims of labor
abuses, sexual violence, child labor, and human trafficking. 17 The totality of these factors gives employers
a free pass to engage in a “race to the bottom” in exploiting and discriminating against this extremely
vulnerable population.
The organizations submitting this report respectfully request UN Member States to urge the United States
to take all reasonable measures – at the federal, state and local levels – to ensure access to migrant
farmworker labor camps by community service outreach workers – including legal aid, health,
educational, and religious providers, and to guard against retaliatory actions taken by employers,
particularly those undertaken with the complicity of local law enforcement and the Department of
Homeland Security.
6
Letter from Advocates for Basic Legal Equality (ABLE) to Svetlana Schreiber, Jun. 29, 2012, Attachment 1.
Letter from Young, Moore and Henderson, P.A. to Lori Elmer, Esq. at Legal Aid of North Carolina (LANC), Oct. 27, 2003, Attachment 2;
Letter from The Kohn Partnership, L.L.P. to Caroline Smiley, Esq. of LANC, Oct. 6, 2011, Attachment 3.
8
Email exchange between Donna Levesque, doctoral student at Walden University, and Stan Eury, Executive Director, North Carolina Growers’
Association, Aug. 9 - 18, 2010, Attachment 4.
9
Letter from Constangy, Brooks & Smith, LLC to Lori Elmer, Esq. of LANC, Jun. 12, 2003, Attachment 5.
10
Declaration of Elizabeth Studstill, intern at the North Carolina Farmworker Health Program, Sep. 16, 2010, Attachment 6.
11
Declaration of Therese Swope Castillo, Harm Reduction Coordinator with the North Carolina Harm Reduction Coalition, Oct. 28, 2011,
Attachment 7.
12
Declaration of Rachel Wright, paralegal at LANC, Dec. 31, 2013. Attachment8. See Colorado Legal Services, Migrant Farm Worker Division,
Overworked and Underpaid: H-2A Herders in Colorado (2010), http://users.frii.com/cls/Overworked%20and%20Underpaid.pdf.
13
Declaration of Nathan Dollar, Vecinos, Inc,, Oct. 15, 2012, Attachment 9; Email from Keith Talbot, Legal Services of New Jersey, to Nathaniel
Norton, MD Legal Aid Bureau, dated Dec. 12, 2012, Attachment 10; Handcuffed in Defense of Human Rights, The Considerate Omnivore, Blog
Post (Jul. 23, 2014), http://theconsiderateomnivore.wordpress.com/2014/07/23/handcuffed-in-defense-of-farmworker-rights/.
14
See generally Human Rights Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the U.S. to Sexual Violence and Sexual
Harassment (2012), http://www.hrw.org/news/2012/05/15/us-sexual-violence-harassment-immigrant-farmworkers (describing the particularly
dehumanizing effect of sexual violence and sexual harassment on farmworkers).
15
Declaration of Lino Guevara Tovar, migrant farmworker, Sept. 26, 2013, Attachment 11.
16
Mark Heffington, The Case for Putting an End to “Building Good Grower Relationships”: Why It Is Time to Stop Discriminating Against Our
Farmworker Patients, 15(3) MCN STREAMLINE 4 (May/Jun. 2009), http://www.migrantclinician.org/files/MCN%20MayJun09_fLR.pdf
(internal quotation marks omitted).
17
See, e.g., Lainez v. Baltazar, 5:2011-cv-00167 (E.D.N.C. filed Apr. 8, 2011) (in which workers alleged a brutal system of debt bondage:
workers who tried to escape were shot at by crew leaders, and defendants responded to the escape by informing the remaining workers that they
were not allowed visitors to the labor camp and by threatening violence against anyone who tried to help workers leave the camp; the case settled
out of court); Camayo v. John Peroulis & Sons Sheep, Inc., No. 10-cv-00772 (D. Colo. filed Apr. 6, 2010); Asanok v. Million Express Manpower,
Inc., 5:07-cv-00048-BO (E.D.N.C. filed Feb. 12, 2007) (where defendants restricted plaintiffs’ movement and their opportunity to visit with other
people who spoke their language and told the workers that they were not allowed to speak to outsiders); Catalan v. Vermillion Ranch Ltd.
Partnership, No. 06-cv-01043 (D. Colo. filed June 1, 2006).
7
2
II. Legal Framework for Migrant Labor Camp Access
a. Relevant U.S. Federal and State Law
The U.S. does not have a comprehensive or uniform federal and state legal framework concerning the
right of migrant farmworkers to receive visits and information from outreach workers on agricultural
labor camps. This compounds the discrimination already endured by farmworkers, who are excluded
from basic workplace protections under U.S. labor and employment laws. These exclusions are grounded
in the vestiges of slavery, and continue to have a racially discriminatory impact. 18 In some states, there is
no governing law protecting the right of access to migrant workers living on labor camps. In the limited
states where those protections do exist, they consist of various and inconsistent federal19 and state court 20
decisions, state statutes,21 state attorney general opinions, 22 and master-servant common law principles.
The U.S. Congress has recognized the special barriers agricultural workers face in accessing legal
assistance and the legal system 23 and has recommended “outreach” as the “principal activity” through
which to break down these barriers, 24 yet that recommendation remains unsupported. .
b. Relevant UPR Recommendations from 2010
Discussion of these issues relate to the following UPR Recommendations from the 2010 Universal
Periodic Review of the U.S., which the U.S .supports: 114, 116, 165, 167, 169, 185, 195, 198, 214, and
225; and these UPR Recommendations, which the U.S. supports in part: 62 and 81.
III.
U.S. Compliance with Its International Human Rights Obligations on Migrant
Farmworker Camp Access
The U.S.’ failure to fulfill the rights of migrant farmworkers to access justice, healthcare, and information
contributes to the continued exploitation of migrant farmworkers by employers and violates the Universal
Declaration of Human Rights (UDHR) articles 6, 7, 8, and 10. The right to recognition before the law,
under article 6 of the UDHR, is not possible for migrant farmworkers who live and work on farms and
ranches in isolation, and who are not allowed by their employers to receive visits from outreach workers
access information and/or legal aid. This is equally true of the right to equality before the law under
article 7, the right to an effective remedy under article 8, and the right to a fair and public hearing under
article 10 of the UDHR.
Under the International Covenant on Civil and Political Rights (ICCPR), the U.S. is obligated under
article 19 to protect the right to seek and receive information, ensuring “easy, prompt, effective and
practical access” to “[g]overnment information of public interest.” 25 Similar to the UDHR violations, the
18
See e.g., Juan E. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the
National Labor Relations Act, 72 Ohio St. L.J. 95 (2011); Race & Immigration Symposium: Mexicans, Immigrants, Cultural Narratives, and
National Origin, 44 Ariz. St. L.J. 305, 328 (2012).
19
See, e.g., Petersen v. Talisman Sugar Corp., 478 F.2d 73 (5th Cir. 1973); Mid-Hudson Legal Servs., Inc. v. G & U, Inc., 437 F. Supp. 60
(S.D.N.Y. 1977), rev’d on other grounds, 578 F.2d 34 (2d Cir. 1978); Velez v. Amenta, 370 F. Supp. 1250 (D. Conn. 1974); Franceschina v.
Morgan, 346 F. Supp. 833 (S.D. Ind. 1972); Folgueras v. Hassle, 331 F. Supp. 615 (W.D. Mich. 1971).
20
See, e.g., State v. DeCoster, 653 A.2d 891(Me. 1995); State v. Fox, 510 P.2d 230 (Wash. 1973); State v. Shack, 277 A.2d 369 (N.J. 1971).
21
See, e.g., Sam Andrews’ Sons v. Agric. Labor Relations Bd., 47 Cal.3d 157 (Cal. 1988) (interpreting Cal. Labor Code § 1152).
22
See, e.g., 67 Op. Atty. Gen. Md. 64 (Jul. 19, 1982).
23
Legal Servs. Corp., Special Legal Problems and Problems of Access to Legal Services of Veterans, Native Americans, People with Limited
English-Speaking Abilities, Migrant and Seasonal Farmworkers, Individuals in Sparsely Populated Areas: A Report to Congress As Required by
Section 1007(h) of the Legal Services Corporation Act of 1974, As Amended 34-36 (1978) (on file ).
24
Id. at 35.
25
U.N. Human Rights Committee, General Comment No. 10 U.N. Doc. CCPR/C/GC/10 (1983); U.N. Human Rights Committee, General
Comment No. 34, U.N. Doc. CCPR/C/GC/34 (2011), http://www2.ohchr.org/english/bodies/hrc/comments.htm. See also, Special Rapporteur on
3
United States’ failure to ensure camp access denies farmworkers’ rights to an effective remedy, and
equality before the law under articles 2(3), 14 and 26 of the ICCPR. Earlier this year the U.N. Human
Rights Committee recommended that the U.S. take measures to ensure that immigrants facing deportation
have access legal representation 26 and improve provision of legal representation to women victims of
domestic violence. 27 The U.N. Human Rights Committee has also interpreted Article 14 of the ICCPR to
require access to the legal system and access to counsel in civil cases.28
The failure of the U.S. government to ensure migrant farmworker camp access also contributes to the
continued exploitation of and discrimination against migrant farmworkers, and directly violates the
Convention on the Elimination of All Forms of Racial Discrimination articles 5 and 6, which protect the
right to seek protection and effective remedies against racial discrimination. Migrant farmworkers are
particularly vulnerable to racial discrimination, and that vulnerability is compounded for migrant workers
isolated in labor camps. 29
IV. Conclusion and Recommendations
The failure of the United States to guarantee access for legal aid, health, and other community outreach
providers to migrant farmworker labor camps results in the denial of access to justice, healthcare and
information for those migrant workers and their families that live and work at the labor camps. It also
decreases these workers’ and their families’ access to other services that are essential to their health,
welfare, and dignity.
The group of human rights and legal aid organizations that submit this report recommend that the U.S.
take the following steps to address violations of migrant farmworkers’ rights in order to comply with its
human rights obligations under the UDHR, ICCPR, and CERD:
(1) U.S. Department of Labor, as well as corresponding state labor agencies, should use and enforce
existing regulations, policies and practices that support the right of access for outreach workers.
This would include:
Increasing the agency's role in investigation and enforcement of access rights
violations;
Collaborating with state and local mechanisms to ensure effective protection of human
rights defenders and migrants;
Conditioning farm labor contractors' registration certificates, and housing
authorizations, on adherence with the right of access for outreach workers; and
Training federal, state and local officials related to the right of access by outreach
workers and mandating that state monitors report observed interference with outreach
workers’ right of access.
(2) U.S. Department of Justice, should utilized its statutory authority found at 42 U.S.C. §14141 to
investigate and monitor local law enforcement agencies, and should specifically monitor police
actions that interfere with the right to migrant labor camp access through intimidation or threats
of arrest.
extreme poverty and human rights, Magdalena Sepúlveda, Access to justice by people living in poverty, U.N. Doc. A/67/278 (2012),
http://www.ohchr.org/EN/Issues/Poverty/Pages/Accesstojustice.aspx.
26
U.N. Human Rights Comm., Concluding Observations on the Fourth Report of the United States of America, ¶ 15 U.N. Doc
CCPR/C/USA/CO/4 (April 22, 2014).
27
Id. at ¶ 16.
28
U.N. Human Rights Comm., General Comment 32: Article 14, Right to Equality before Courts and Tribunals and To a Fair Trial, ¶ 10, U.N.
Doc. CCPR/C/GC/32 (Aug. 23, 2007).
29
See Comm. on the Elimination of Racial Discrimination, General Recommendation XXX on Non-Citizens, ¶ 21, U.N. Doc. A/59/18(SUPP)
(2004).
4
(3) For employers utilizing the H-2A federal guestworker program, the U.S. Department of Labor
should enforce existing regulations prohibiting unfair treatment on right of access to nongovernmental outreach, deem denial of access rights to outreach workers a substantial violation of
a material term or condition of the job, and require access rights be included in working
conditions investigated during field checks.
(4) Develop a complaint mechanism for outreach workers at the U.S. Department of Labor or the
U.S. Department of Justice to track violations by employers and local law enforcement agencies
and mechanisms to monitor and investigate recurring problems.
(5) Educate the public and government agencies, including local law enforcement agencies, city and
state elected officials, and state regulatory agencies about the rights of human rights defenders,
who they are, and the range of rights they seek to protect.
5
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Statement provided by Keith Talbot
New Jersey
During the 2011 and 2012 seasons, a farm which had recently been
subjected to one of the largest regional fines for agriculture for
unpaid wages by the United States Department of Labor after complaints
by workers and legal services began restricting labor camp access to
legal services. In 2011, when community legal education and outreach
efforts were made at the labor camp, the farmer contacted the state
police, and the police asserted the requirement of getting a court
order for reentry, and informed the employer he could personally file
trespass charges. The farmer then filed trespass charges against the
legal services attorney. Although the state Supreme Court in State v.
Shack, 58 N.J. 297 (1971) had held that trespass laws cannot be used to
prevent access of legal services workers to access to farmworkers at
labor camps, the municipal court charges required four court
appearances but were ultimately dismissed. In 2012, the farm employer
again denied access and asserted that he had the right to give or deny
access to the labor camp and farmworkers. Ongoing efforts to promote
access are continuing
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I, Nathan Dollar, declare as follows:
1. I am the executive director of Vecinos, Inc. Farmworker Health Program. I have
worked at Vecinos, Inc. since 2010 coordinating medical outreach to
farmworkers and their families. The majority of my time at work is spent visiting
migrant labor camps in our mobile medical unit, interpreting for my medical staff
and doing health education with farmworkers and their families.
2. Every October our outreach team travels to Franklin, North Carolina to hold
clinics to provide medical services to H2A workers who work for Norton Creek
Farms.
3. On the evening of September 29, 2011, we were holding a clinic for a group H2A
workers living in an old motel located on Moss Lane in Franklin, NC. There were
approximately 60 workers residing at this location and they did not return home
until after 9pm. The workers had given us their consent to be on the premises
and expressed that they wanted our services. This evening our medical provider
and I were working in our mobile unit and our nurse, "RN" was collecting lab
work and providing flu vaccinations directly outside the mobile unit.
4. At approximately 9:30pm there was a knock on our mobile unit door. A man who
identified himself as the son-in-law of the workers' employer, Wayne Moss, said
he wanted to talk with me. I stepped out of the mobile unit to speak with the
man. He told me that we had to leave by 10pm. I replied that we would make all
efforts to leave at a reasonable hour, but that we had several people waiting to see
our medical provider and would not be able to leave by 10pm. At this point the
man became hostile and told me that the workers had complained about our
presence and an alleged “handbook” stated that the workers could not have
visitors past 10pm and he would “call the law” if we were not out at that time. At
this point the man walked back to his apartment which was adjacent to the
farmworker housing.
5. At approximately 10:15pm a patrol car from the Macon County Sheriff’s
Department arrived. There were two deputies. One of the deputies spoke with
the man and the other spoke with me. I informed the deputy that despite living
in grower provided housing; the workers had tenants’ rights under North
Carolina law. As a result, we had the right to be there because we had permission
from the workers. I showed the deputy a copy of the 1998 letter from the NC
State Attorney General’s office specifically addressing the tenant’s rights of
farmworkers and the tenant’s rights brief prepared by NC Legal Aid’s
Farmworker Division.
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6. Both deputies reviewed the information I had, but determined that we had to
leave. The other deputy told me that he wasn’t sure about the law, but the owner
was telling us to leave so he was obligated to make us leave. We then left.
7. The workers expressed to us that they were frightened by the police presence and
did not understand why the police had been called if we were only trying to
provide a service to them.
8. Because we were forced to leave early, we had to turn several patients away that
night.
9. In the following weeks we visited other H2A housing owned by Norton Creek
Farms, and did not have any problems, despite staying well past 10pm.
10. On October 2, 2012 we were back holding a clinic at the same location on Moss
Lane in Franklin, NC. This time our nurse was taking blood pressures and
collecting labs in our mobile unit and I was working with two nursing students
from Western Carolina University at a table outside the mobile unit. At
approximately 7:30pm, another man approached the table and addressed me. He
did not reside at the motel. Instead, he appeared to be staying at an apartment
building adjacent to the property. He told me that we had to be out by 10pm.
Again, I informed him that we would be out as early as possible, but that I could
not guarantee we would leave by 10pm. At this point the man became very
hostile and began yelling in my face.
11. I told him that the workers had given us their permission to be there and we
would stay as long as they wanted us to. To this he replied that the workers did
not have right to give us permission to be there and that he made the decision.
He also stated that “workers don’t have tenants’ rights.” He went on to tell me
about what he claimed was an employee handbook that contained a specific rule
limiting visitors to 10pm. To this, I calmly informed him that he was mistaken
and that the state of North Carolina says that the farmworkers have tenants'
rights and they had a right to have visitors and to receive health care. I calmly
told him that we would not comply with this rule. He told me that I was to be
gone by 10pm and walked away.
12. At this point the two nursing students were visibly frightened by the
confrontation, but we continued working. I spoke with the workers again who
had gathered to see what was going on. I told them that it was our objective to
offer everyone services that wanted them and we would stay as long as we had
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their permission. I asked them again if it was okay if we stayed past 10pm. They
unanimously replied that it was.
13. At approximately 8:30pm the man returned with a copy of the handbook. This
time he became increasingly more hostile and continued to yell and blow smoke
in my face. He continued to say that the workers "have no right" to tell us we can
be there. He also said, threateningly, that if the farmworkers did tell us that we
could be there past 10pm then they would fire all of them and send them home.
He told me again that he would “call the law” if I did not start packing up by
9:45pm. He then went back to his apartment.
14. At approximately 9:40pm the man came out of his apartment, sat in a chair and
glared at us. This made my staff and the nursing students uncomfortable, but we
continued to work.
15. At 10:10pm a patrol car from the Macon County Sheriff’s Department pulled into
the parking lot. The deputy spoke with the man for a while then came over to
speak with me.
16. Again, I informed the officer that the workers had tenants’ rights and that they
had given us their consent to be there. I also showed the officer the same
literature detailing the workers’ rights to have visitors.
17. After reviewing the literature the officer said, “It appears you have the right to be
here.” He told the man that the owner could contact us and we could dispute this
in court, but that he could not make us leave.
18. We continued working and packed up and left around 10:30pm.
I declare under the penalties of perjury that the foregoing declaration is true and
accurate to the best of my knowledge and belief.
This is the 15th day of October, 2012
Nathan Dollar
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