On behalf of our clients, who work as migrant laborers in the farms and fields of Virginia, the Legal Aid Justice Center (LAJC) submits these comments in response to the Proposed Amendments to the Rules and Regulations Governing the Construction of Migrant Labor Camps. LAJC is a statewide organization that provides free legal representation to low-income people throughout the Commonwealth of Virginia. Through a combination of direct representation, organizing, education, and advocacy, we aim to address the root causes of injustice and poverty that our clients face. Among other things, LAJC provides representation to individuals who work on the many farms throughout the commonwealth of Virginia in their efforts to keep food on the plates of people across the country while maintaining safe and healthy working and living spaces where their dignity is recognized and upheld.

Currently, there are two sets of regulations that govern the construction and maintenance of migrant labor camps, one for those built before 1980 and one for those built after. These camps are located across the Commonwealth and are where migrant farm laborers live during their time in Virginia. These camps are often in some of the most remote parts of the state, making outreach to these essential workers, as well as workers’ access to valuable and necessary resources, that much more difficult. Many of these workers also speak Spanish or indigenous languages as their native language, and since the legal and regulatory framework surrounding the work they do is so complex, it can be difficult to navigate such a system, even for those workers who do speak and understand English.

These rules and regulations which govern the construction of migrant labor camps in Virginia are essential to allowing some of the most essential workers, those who are responsible for getting food to our plates, to live in safe and healthy environments during their temporary stays in Virginia. As of right now, Virginia only provides the bare minimum of standards as required under federal law. These regulations, based on regulations from the Occupational Health and Safety Administration (OSHA) (for those buildings built post 1980) and the Employment and Training Administration (ETA) (for those buildings built before 1980), do not require that these hardworking individuals live in housing that is as safe and comfortable as the average home. Indeed, migrant housing is often hardly habitable. For that reason, we strongly urge you to amend the regulations governing the construction of migrant labor camps so that these essential workers can live in places that are safer and more comfortable than those currently required.

We strongly urge the Department to consider some of the proposals below, to provide housing for migrant farm workers that is more than just the bare minimum required under federal law, and to provide a clearer and more concise regulatory scheme which will simplify inspections and enforcement.

First, we propose that the regulations for all migrant labor housing be combined into one regulatory scheme, which would apply to all migrant labor camps equally, regardless of when they were built. This would make the regulations much more easily understandable than the patchwork of regulations that currently exists, crossing between two different government agencies.

Second, we propose a requirement that all migrant labor camps have the capacity for some form of climate control, which would allow the spaces to be heated to at least 70 degrees Fahrenheit and cooled to at least 75 degrees Fahrenheit. Other states, including but not limited to California, Oregon, and Michigan, have added requirements that migrant labor camps have the capacity to be cooled to a certain level, in response to the increasingly warmer summers across the country and record-breaking heat. As the regulations currently stand in Virginia, there is only a requirement that migrant labor camps provide heating, but there is no such requirement for cooling. The migrant farmworkers who call these camps home for large portions of the year work tirelessly in the hot sun to support Virginia’s agricultural economy. During the summer months, the heat index in certain parts of Virginia can rise well above the level that is considered safe for outside labor, though farmworkers have no protection under the law against heat stress, and many farm laborers get sick each year as a result. Amending the regulations to require migrant labor camps to have the capacity to cool living quarters to at least 75 degrees Fahrenheit would make it so that these hardworking people can have a respite from the heat and sun, and they can live in a safer, healthier, and more comfortable environment.

Third, we propose amendments to the regulations so that migrant labor camps occupied by laborers in the Commonwealth on H-2B, non-agricultural labor temporary visas, would also be inspected according to the requirements set out in the regulations. The line between agricultural labor and non-agricultural labor can be very thin and is oftentimes blurry. People come here on H-2B visas, for instance, to work in landscaping, which requires them to work outside just as much as their counterparts in the field with H-2A visas. They also come to work in meat and seafood processing, providing food for people across the country, much like their H-2A counterparts. And these are just two of many examples. People who come to Virginia on H-2B visas are also often live in migrant labor camps and communal housing, much like farmworkers, however that housing is not regulated or inspected in the same way. We would like to propose that housing for all migrant laborers, whether they come on H-2A or H-2B visas, if it is provided by their employer, be inspected and held to the same standards, regardless of whether they are in apartments, dormitories, camps, or even hotels and motels.

Fourth, we propose that inspections of migrant labor housing occur more regularly than just annually, and that inspections can occur without the consent of property owners or a warrant. Inspections should occur at least twice during the year, once before any laborers arrive to the camp for the season, and once while the laborers are there. This is necessary to ensure that the camps are maintained to a requisite level and that the housing remains safe, comfortable, and healthy for all the workers living there. In addition, these inspections should be able to happen regardless of whether the property owner explicitly consents. The ability to apply for a permit for migrant labor housing should require consent to allow for periodic unannounced inspections to ensure that the regulations are being complied with. In the alternative, we propose that inspectors from the Department of Health obtain warrants for their entry and inspection in the camps prior to their being refused entry. This would obviate the necessity for owner consent and would allow enforcement of the regulatory scheme.

Fifth, we propose that the regulations be amended to decrease the number of people allowed per bedroom, bathroom, and kitchen facilities. This should include amendments making it so that there is at least one water closet or privy seat for each sex in the ratio of at least one such unit for each 10 occupants, as well as at least one showerhead per 10 persons.

At a minimum, these regulations should not be repealed since they are necessary for the protection of public health, safety, and welfare of migrant workers, and they are required by federal law. These proposed amendments to the regulations would allow for better protection of public health, safety, and welfare of some of the most essential workers in the Commonwealth, and any economic impact on small businesses would not run contrary to the stated objectives of applicable law. Migrant workers do some of the most thankless, back breaking work that there is, and they do the essential job of keeping food on our plates, even amid a global health crisis. Improving the regulations would allow them to live more comfortably during their time here and would better preserve their dignity, safety, and health for the months that they call the Commonwealth their home.

Thank you for the opportunity to submit comments.

Sincerely,

Marissa L. Baer, Esq.

Virginia Justice Project for Farm and Immigrant Workers

Legal Aid Justice Center