Close to Slavery: Guestworker Programs in the United States

Foreign-born workers have been significant contributors to the U.S. economy for centuries.

From the early 1800s until the outbreak of World War I, millions of European immigrants — Irish, British, Germans, Italians, Scandinavians, Russians, Hungarians and others — arrived in the United States, and their labor helped fuel the country’s economic and geographic expansion. For most of this period, under the Naturalization Act of 1790, the borders were open and there were no numerical limits on immigration. The first major attempt to regulate or stem the flow of these workers came in 1882, when Congress passed the Chinese Exclusion Act to ban the employment of Chinese laborers.

During the latter half of the 1800s, following the end of the Mexican-American War in 1848, tens of thousands of migrant workers from Mexico began arriving. Unlike their European and Asian counterparts, they were able to move freely across the border to temporary jobs in ranching, farming, mining and other industries, and then, in many cases, back home again. The establishment of the U.S. Border Patrol in 1924 made access to jobs in the United States more difficult for Mexican workers, however, and for the first time they were seen as “illegal aliens.” But there remained no numerical limits on legal immigration from Mexico until 1965.

World War I brought migration from Europe largely to a halt and created a greater demand for Mexican labor. Soon afterward, the Great Depression arrived and Mexican workers were seen as a threat to American jobs. More than 500,000 people, including some United States citizens, were forcibly deported.

The onset of World War II created another labor shortage, and Mexican workers were again called upon to fill the void.

The Braceros

Labor organizers in the 1950s exposed widespread abuses of migrant farmworkers.

In 1942, the U.S. State Department reached a bilateral agreement with Mexico creating the bracero program, which Congress later approved. To assuage critics, proponents of the program asserted that Mexicans, who had been deported en masse just a few years earlier, were easily returnable. This program was designed initially to bring in a few hundred experienced laborers to harvest sugar beets in California. Although it started as a small program, at its peak it drew more than 400,000 workers a year across the border. A total of about 4.5 million jobs had been filled by Mexican citizens by the time the bracero program was abolished in 1964.

Interestingly, the program had many significant written legal protections, providing workers with what historian Cindy Hahamovitch, an expert on guestworker programs, has called “the most comprehensive farm labor contract in the history of American agriculture.” Under this program:

• Employers were required to have individual contracts with workers under government supervision;
• Workers had to be provided housing that would comply with minimum standards;
• Workers had to be paid either a minimum wage or prevailing wage, whichever was higher;
• If employers failed to pay the required wages, the U.S. government would be required to support the workers;
• Employers had to offer at least 30 days of work; and
• Transportation costs were to be shared by the workers, the growers and the government.

But the bracero program did not look so rosy in practice. Mexican workers, who generally did not read English, were often unaware of contractual guarantees. And there were numerous reports of employers shortchanging workers — just as in today’s H-2 guestworker program.

The Mexican workers, who were called braceros, also had 10% of their pay withheld, ostensibly to pay for a Social Security-type pension plan. The money was to be deposited into a Mexican bank on behalf of the workers. It was never paid, however. Several lawsuits have been filed to recover what is now estimated to be hundreds of millions of dollars owed to Mexican workers.

In 1956, labor organizer Ernesto Galarza’s book Stranger in Our Fields was published, drawing attention to the conditions experienced by braceros. The book begins with this statement from a worker: “In this camp, we have no names. We are called only by numbers.” The book concluded that workers were lied to, cheated and “shamefully neglected.” The U.S. Department of Labor officer in charge of the program, Lee G. Williams, described the program as a system of “legalized slavery.”

More than 4.5 million jobs were filled by Mexican braceros between 1942 and 1964. A Department of Labor official in charge of the program called it a system of “legalized slavery.”

The availability of braceros undermined the ability of U.S. workers to demand higher wages. During the 1950s, growers brought in braceros when their U.S. workers either went on strike or merely threatened to do so. In the late 1950s and early 1960s, Cesar Chavez mounted farmworker protests over the program and later said that organizing the United Farm Workers would have been impossible had the bracero program not been abolished in 1964. The grape strike in which the union was born, in fact, began the following year.

The bracero program is now widely believed to have contributed greatly to patterns of unauthorized immigration to the United States from Mexico.

After the bracero program was dismantled in 1964, foreign workers could still be imported for agricultural work under the H-2 sections of the Immigration and Nationality Act. The H-2 program had been created in 1943 when the Florida sugar cane industry obtained permission to hire Caribbean workers to cut sugar cane on temporary visas. The appalling conditions experienced by sugar cane cutters have been well-documented. In one well-publicized incident, on November 21, 1986, Caribbean H-2 sugar cane cutters stopped work on a large sugar plantation in south Florida, objecting to the work conditions. Workers reported that the company had tried to pay a rate lower than what was promised in the work contract, and more than 300 workers refused to go to work as a result. The company called in the police, who used guns and dogs to force workers onto buses, on which they were removed from the camp and deported. This incident became known as the “dog war.” It has come to symbolize for many people the potential for extreme abuse in a guestworker program that permits employers to control the worker’s right to remain in the United States.

The H-2 program was revised in 1986 as part of the Immigration Reform and Control Act, which divided it into the H-2A agricultural program and the H-2B non-agricultural program. There are no annual numerical limits on H-2A visas. The annual limit on H-2B visas is currently 66,000. In 2011, the last year for which data are available, the United States issued about 55,000 H-2A visas and about 51,000 H-2B visas. The countries sending the most workers to the United States under these programs were Mexico, Jamaica and Guatemala; about 80% are Mexican.

As will be shown in this report, this current guestworker system is plagued by some of the same problems as the discredited bracero program.

The exploitation of H-2A and H-2B guestworkers commences long before they arrive in the United States. It begins, in fact, with the initial recruitment in their home country — a process that often leaves them in a precarious economic state and therefore extremely vulnerable to abuse by unscrupulous employers in this country.

U.S. employers almost universally rely on private individuals or agencies to find and recruit guestworkers in their home countries, mostly in Mexico and Central America.

These labor recruiters usually charge fees to the worker — sometimes thousands of dollars — to cover travel, visas and other costs, including profit for the recruiters. The workers, most of whom live in poverty, frequently must obtain high-interest loans to come up with the money to pay the fees. In addition, recruiters sometimes require them to leave collateral, such as the deed to their house or car, to ensure that they fulfill the terms of their individual labor contract.

The largely unregulated recruiting business can be quite lucrative. With more than 106,000 such workers recruited in 2011 alone, tens of millions of dollars in recruiting fees are at stake. This financial bonanza provides a powerful incentive for recruiters and agencies to import as many workers as possible — with little or no regard to the impact on individual workers and their families.

Workers Start Off Deeply in Debt

Overwhelming debt is a chronic problem for guestworkers. Typically, guestworkers arriving in the United States face a fee-related debt ranging from $500 to well over $10,000. Many pay exorbitant interest rates on that debt. When that’s the case, they have virtually no possibility of repaying the debt by performing the work offered by the employer during the term of the contract.

Although U.S. laws do provide some obligation for employers to reimburse workers for their travel and visa costs, in practice it is rare that guestworkers are fully reimbursed.26 Most struggle to repay their debt, while interest accrues. These obstacles are compounded when employers fail to offer as many hours of work as promised — a common occurrence.

The U.S. forestry industry recruits many of its guestworkers from Huehuetenango in Guatemala, where many indigenous people live in extreme poverty with few opportunities to earn wages.

Over the past decade, the SPLC has represented Guatemalan guestworkers who are recruited to work in the forestry and pine straw industries. These workers have been routinely subjected to exploitative recruitment tactics, often by the same recruiters who have consistently escaped liability for their actions. This is true despite the Department of Labor’s recent efforts to better regulate the H-2 program, including enacting regulations that prevent employers from knowingly engaging recruiters who charge fees to workers. In reality, these incremental regulatory changes have not stopped recruitment abuse in guestworker programs.

Guestworkers from Guatemala generally pay at least $2,000 in travel, visa and hiring fees to obtain forestry jobs in the United States. Guatemalans are recruited largely from Huehuetenango, an extremely poor region where many indigenous people live. Often illiterate, many speak Spanish as their second language, with varying degrees of proficiency. They generally work as subsistence farmers and have virtually no opportunity to earn wages in rural Guatemala. Thus, their only realistic option for raising the funds needed to secure H-2 jobs in the United States is to visit a loan shark, who will likely charge exorbitant interest rates. Given that the season for forestry work is generally three months long and workers often earn so little, they have little hope of repaying the debt doing the work for which they were hired.

Leonel Hernandez-Lopez of Guatemala, like many other guestworkers, was required to leave the deed to his home with recruiters as “collateral.

In addition, the majority of Guatemalan forestry workers interviewed by the SPLC were required to leave some form of collateral, generally a property deed, with an agent in Guatemala to ensure that the worker will “comply” with the terms of his contract. If a worker violates the contract — as determined by the recruiter — that worker will be fined or threatened. This tactic is enormously effective at suppressing complaints about pay, working conditions or housing. U.S.-based companies deny knowledge of the abuse, but there is little doubt that they derive substantial benefit from their agents’ actions. It is almost inconceivable that a worker would complain in any substantial way while a company agent holds the deed to the home where his wife and children reside.

In 2012, Guatemalan guestworkers recruited to collect pine straw and harvest blueberries in the southeastern United States sought assistance from the SPLC in escaping an exploitative labor situation. The workers had borrowed large amounts of money at monthly interest rates of between 5 and 10% (well over 60% annually) to cover recruitment fees in addition to other pre-employment costs. Several of the workers offered the deeds to their homes as collateral. As one worker explained, “The recruiter told me that I would make $8.30 an hour and would never run out of work to do. I didn’t realize that I would also have to pay so much money each month for rent, transportation and work supplies. He made it sound like we would earn lots of money, but I wasn’t even able to pay off my debt.” The workers were never reimbursed for their travel and visa expenses. After receiving meager wages and languishing for weeks without work, many of the workers left their jobs in even greater debt as interest on their loans continued to accrue. The workers feared that they would lose their homes, bring shame to their families, or put their lives in danger if they returned to Guatemala without having paid off their debts.

These tactics are not limited to any particular industry or country. SPLC clients from countries across the globe who work in a variety of industries, including hospitality and welding, have reported similar abusive recruitment tactics. In one SPLC case involving H-2B guestworkers from India, David v. Signal International, LLC, the recruiter threatened to cancel visas or tear up passports to keep job applicants in the recruitment pipeline. One worker described watching when two workers who had been recruited to work at Signal sought to withdraw from the recruitment process and asked to be refunded the approximately $10,000 they had each paid. He described how the recruiter refused to refund their fees and drew a big “X” across the visas in their passports. Other witnesses have described how this recruiter threatened to tear up the passports of workers who asked for refunds.

Guestworkers recruited from Bolivia, Peru and the Dominican Republic each paid between $3,500 and $5,000 to obtain temporary, low-wage jobs in New Orleans hotels after Hurricane Katrina. The hotel owner certified to the U.S. government that no American workers were available.

Other advocacy organizations have thoroughly documented deceptive and abusive recruitment activities in a variety of H-2 occupations, including the seafood, herder, and agriculture industries, among others.

Many of the workers interviewed by the SPLC know they are taking a risk by entering into deep debt in exchange for employment in the United States.

This raises the question: Why do workers choose to come to the United States under these terms?

The simple fact is that workers from Mexico, Guatemala and many other countries often have very few economic opportunities. In recent years, rural Mexicans have had an increasingly difficult time making a living at subsistence farming, and in some regions there are virtually no wage-paying jobs. Where jobs exist, the pay is extremely low; unskilled laborers can earn 10 times as much, or more, in the United States as they can at home. Most perceive the guestworker program as their best chance to get to the United States and provide a better life for their families.

Recruiters often exploit workers’ desperate economic situation by deceptively promising them lucrative job opportunities and even green cards or visa extensions. These abuses are exacerbated by the inherently disempowering structure of the H-2 program. The program requires that guestworkers work only for the employer who sponsored their visa and that they leave the country when their visa expires. Therefore, once the workers arrive in the United States and the recruiter’s deception unravels, they face a tough decision: They can remain in an abusive situation, return to their home country where they have little chance of earning enough money to repay their debt, or leave their employer and become undocumented, risking their ability to return to the United States in the future to work. Tethered to a single employer and often unable to return home due to crushing debt, guestworkers are extremely susceptible to debt servitude and human trafficking.

After weeks of scarce work and abusive treatment, Guatemalan workers recruited to work in pine straw and blueberries in 2012 saw no recourse other than to abandon their employer, risking retaliation, blacklisting, and loss of legal status. “I wanted to return home but couldn’t afford a plane ticket,” said one worker. “I was really worried about being in the United States illegally and ruining my chances of getting a visa again, but I felt I had no choice. I couldn’t stay at the farm any longer.” Workers who remain with abusive employers often find themselves in a similar situation when their contract is up. It is not uncommon for workers, desperate to pay off their debt before returning home, to overstay their visas or pay contractors, employers or even immigration attorneys for fraudulent visa extensions.

Regulations prohibiting employers from using recruiters who charge fees do exist, but they are rarely enforced. This is likely because holding international recruiters accountable is nearly impossible when they can easily conceal their overseas activities from government monitoring. For example, two consulates in Latin America routinely asked prospective H-2 workers how much they had paid in recruitment fees, apparently out of concern that a high level of indebtedness would cause workers to overstay their visas in order to repay the debt. Workers were told by their recruiters what the “correct” — that is, false — answer should be, and workers dutifully understated the fees that they have paid.

In reality, this system is so flawed that small regulatory changes simply have not — and will not — go far enough to put a stop to the lucrative recruitment game. Empowering guestworkers with the ability to switch employers and, eventually, to become full members of our society through a pathway to citizenship will go far toward reducing the control that unscrupulous recruiters and employers exert over guestworkers in the United States. These are basic rights to which guestworkers — who are simply seeking to better their lives by lawfully obtaining employment in the United States — should be entitled.

Starting in 2003, the Arkansas-based company Candy Brand brought in hundreds of Mexican H-2A workers each year to harvest and pack tomatoes. Many of the workers were from Michoacán, Mexico.

In Michoacán, a powerful, local family controlled the recruitment of Candy Brand workers. According to workers’ testimonies, the recruiters routinely charged them between $275 and $375 in fees just to have their names placed on a list of eligible workers. Workers from the Mexican state of Tabasco were not only required to pay a similar fee by their local recruiter, but were further extorted by one of the Michoacán recruiters. This recruiter met the workers in Monterrey after their visas were issued and demanded that they pay him an additional $1,000 just to have their visas and passports returned to them.

“He held my passport up in the air and threatened to cut it if I didn’t pay him. I didn’t have all of the money he asked for but he gave me back my passport on the condition I would pay the rest of the money to his son in the United States after I started working for Candy Brand. The recruiters threatened to kill my wife and children in Mexico if I didn’t pay,” said Juan Pablo Asencio Vasquez, a worker from Tabasco. Reluctant to forgo the money they had already spent for the opportunity to work in the United States, the workers felt they had no other option but to pay these fraudulent and illegal fees.

In November 2006, Josy* left his town in southern India to travel to the U.S. He had paid approximately $13,150 to a labor recruiter for what he understood to be a good job at shipyards owned by Signal International, which he believed at the time to be a reputable company, and the chance to settle permanently in the U.S. with his family. In fact, he was traveling on an H-2B visa that would be good only for 10 months, and the job would be nothing like he was promised.

His investment represented a huge sum that Josy’s meager salary in India as a welder could not begin to cover. Putting up his family’s land and home as collateral, he borrowed the bulk of the money at a 14% interest rate; his family pawned heirloom jewelry, which has huge cultural significance in India, to raise most of the rest.

“When we arrived at the Signal labor camp, I was horrified and stunned to see the living conditions,” Josy said. “Twenty-four men slept in one room with bunk beds. There were only four showers, two toilets, and two sinks for twenty-four men. The space was incredibly cramped, and there was very little room to walk.”

The Signal labor camp was in an isolated location. Signal did not allow the guestworkers to have visitors in the camp. Guards were stationed at the gate to ensure that no visitors entered. “I felt like we were living in a jail,” Josy said.

When workers complained about the situation to Signal management, they were told they were lucky to be in the United States because in India people live like animals. “But I had no other option [but to keep working at Signal],” Josy said, “because I had so much debt and needed to work to pay it off.”

Josy’s first child was born shortly after he arrived in the United States. He was unable to travel home to see his newborn daughter, but the desire to take care of her fueled him to keep fighting through the indignities and hardships too common in the guestworker program.

In spring 2009, Julia* arrived in Florida on an H-2B visa to work as a hotel housekeeper. She was recruited in Jamaica by a recruiter who promised her good wages, affordable housing, and full-time work. She paid nearly $1,500 for recruitment and visa fees, airfare, and other transportation expenses for the opportunity to work in the United States — money she had to borrow. When Julia arrived, she was surprised to discover that she would actually be working for a hospitality subcontractor at an entirely different hotel than the one that had sponsored her visa.

After nearly one month of working 40 hours or more a week cleaning hotel rooms, Julia and her co-workers had not received a single paycheck. Deeply in debt from their travel and visa expenses, and without any income in the United States, Julia and her co-workers were forced to eat the food that the hotel guests left behind in the rooms. They also relied on the few workers who had relatives in the United States to purchase food and provide them with transportation to the grocery store from their isolated apartment complex.

When the workers finally did receive a paycheck, it was for much less than what they were owed based on the hours they had worked, and it did not include overtime pay. The employers had also made excessive deductions for rent, transportation, and unexplained “miscellaneous fees,” which lowered the workers’ pay below the federal minimum wage. In addition, the employers failed to reimburse the workers for their travel and visa expenses, as required by law.

One day, Julia and her co-workers gathered to protest the wage theft to their employers. Some workers threatened to leave. The employers warned the workers that if they left the hotel premises or looked for a second job, they would be deported.

“I was so devastated by our situation. I wanted to go home, but I couldn’t because I had no money. I also couldn’t get another job. I came to the United States to work so I could help my family and save to go back to school. I had never been treated so badly before, and I felt like there was nothing I could do about it.”

A chronic problem faced by guestworkers is that employers recruit too many of them, a situation that leads to workers not being able to earn as much as they were promised.

Because the workers themselves, not the employers, absorb most of the costs associated with recruitment, employers often grossly exaggerate their labor needs when seeking Department of Labor (DOL) approval to import workers. In 2011, the DOL inspector general found that several large forestry employers in Oregon “significantly overstated their actual need for foreign workers.”55 To be sure, sometimes employers genuinely do not know months ahead of time exactly how many workers they will need, and they may worry that some workers will leave.

Under the H-2 program, employers are obligated to offer full-time work when they apply to import foreign workers; anything less will not be approved by the DOL. There is virtually no enforcement of this requirement in practice, however.

DOL regulations require that H-2A workers be guaranteed 75% of the hours promised in the contract — a provision called the “three-quarters guarantee.” That does not mean employers always comply. Many of the terms in a worker’s job offer are simply not honored. The DOL’s inspector general found in 2004 that the North Carolina Growers Association overstated both its need for workers and the length of the period of employment, factors that likely led workers to abandon their contracts early and not receive the return transportation to which they were lawfully entitled.56

In the H-2B program, there is no regulation of the number of hours that must be guaranteed to workers. The DOL included the “three-quarters guarantee” in its newly proposed H-2B regulations, but those regulations are currently blocked as a result of employer-driven legal challenges. Requiring employers to guarantee H-2B workers a certain number of hours is important because the DOL generally will not enforce the provisions of an H-2B job order, and some courts have held that an H-2B job order is not an enforceable contract.57 Thus, if a worker arrives in the United States on an H-2B visa and is offered no work for weeks on end (and this has occurred many times) that worker has virtually no recourse. He may not lawfully seek employment elsewhere. He likely has substantial debts on which he must continue to make payments. As an H-2B worker, he more than likely is obligated to pay for housing; certainly, he must pay for food.

The ramifications to the worker of being deprived of work for even short periods are enormous under these circumstances. Fundamental to the problem is that the worker is not free to shop his labor to any other employer.

Employers violate guestworker contracts with impunity, frequently misclassifying workers to avoid paying higher wages.

In some instances, workers never receive a contract or are forced to sign a contract that they do not understand.58 “When I arrived to the U.S., the employer handed me a contract and told me to sign it,” said one pine straw worker. “I didn’t get the chance to look it over because I felt pressure to sign it right away. I spent a lot of money just to come to the U.S. and didn’t want to risk my job by causing any problems right away.” If workers cannot understand the terms of the contract — or worse — they are never given a contract, then it is highly unlikely that they will attempt to enforce employer compliance with contract guarantees, even assuming any exist. Other factors, including fear of retaliation and lack of access to enforcement mechanisms, means contractual promises, in practice, rarely provide H-2 workers with any meaningful security.

Misclassification
Other contract violations are routine. One of the most common is that of misclassification. This occurs most often when workers who should be characterized as H-2A workers (because, for example, they are picking produce in the field) are instead brought in as H-2B workers (and labeled as packing shed workers, for example). This results in workers being paid substantially less than the wage rate they should lawfully be paid. It also results in the workers being denied the substantially better benefits and legal protections afforded to H-2A workers, such as free housing and eligibility for federally funded legal services.

In another common form of misclassification, employers simply misstate the kind of work H-2B employees will be performing, so that the prevailing wage rate is set for one kind of work, such as landscaping, when the workers actually will be doing work that warrants a higher prevailing wage rate, such as highway maintenance.59Again, there is virtually no recourse for a worker in this circumstance because the DOL generally under-enforces these kinds of abuses and H-2B workers are ineligible for federally funded legal services. As a practical matter, the only thing that workers can do, then, is to receive far less than they are legally entitled to under the law.

Lawyers for guestworkers in North Carolina report numerous accounts of H-2A workers who were deliberately sent by their employers to work on other operations owned by employers or their relatives, operations that would have to pay U.S. workers substantially more than the Adverse Effect Wage Rate. In one case, several H-2A Christmas tree workers were assigned by their employer to work in a home construction business, where they performed skilled carpentry at far less than the prevailing wage.60

This is just one more way that employers can exploit the guestworker system for profit — and the vast majority of workers can do nothing about it.

Guestworkers toil in some of the most dangerous occupations in the United States.61 Fatality rates for the agriculture and forestry industries, both of which employ large numbers of guestworkers, are seven times the national average.62 Unfortunately, when H-2 workers suffer injuries on the job, all too often they are denied access to appropriate medical care and benefits. Those who are seriously injured face enormous, often insurmountable obstacles to obtaining workers’ compensation benefits.

In most instances, guestworkers are entitled to workers’ compensation benefits — on paper, at least.

The reality is that many injured guestworkers are not able to obtain the benefits to which they are entitled under this system. Only the H-2A program requires employers to provide workers’ compensation coverage throughout the United States. For H-2B workers, workers’ compensation coverage depends on the laws in the state where the worker is employed. Because workers’ compensation rules vary by state, some states are more accessible to transnational workers than others. And workers often lack the knowledge needed to negotiate the complex system in order to have benefits continue when they leave the United States.

There simply are no clear rules in the H-2 regulations guaranteeing that workers’ compensation benefits will continue after an injured worker returns to his home country. Indeed, the insurance carrier of one large company employing substantial numbers of guestworkers has a policy of affirmatively cutting off workers when they leave the United States, which they inevitably must do. This inhibits the workers’ ability to gain access to benefits and provides a financial incentive for employers to rely on guestworkers.63

Guestworkers perform some of the most difficult and dangerous jobs in America, but many who are injured face insurmountable obstacles to obtaining medical treatment and workers’ compensation benefits

Some states (for example, New Jersey) mandate that examining physicians be located in the state where an injury occurred. This means that injured workers have difficulty obtaining benefits while in other states and in their home countries. Some states require workers to appear in the state for hearings. And most states do not have clear rules permitting workers to participate by telephone in depositions and hearings before the workers’ compensation body. These rules put guestworkers at an enormous disadvantage in obtaining benefits to which they are entitled. As a practical matter, workers also have an extremely difficult time finding a lawyer willing to accept a case for a guestworker who will be required to return to his or her home country. In 2003, a group of civil rights and immigrant rights groups filed an amicus brief with the Inter-American Court of Human Rights relating to the treatment of immigrants in the United States. Among their many complaints: the discrimination against foreign-born workers in the state-by-state workers’ compensation scheme. That brief states:

“Workers’ compensation laws in many states bar the non-resident family members of workers killed on the job from receiving full benefits. In those states, whenever the family member is living outside the United States and is not a United States citizen, the family members do not receive the full death benefits award. There are several ways in which states limit compensation to nonresident alien beneficiaries. Some states limit compensation compared to the benefits a lawful resident would have received, generally 50% (Arkansas, Delaware, Florida, Georgia, Iowa, Kentucky, Pennsylvania, and South Carolina). Some states restrict the types of non-resident dependents who are eligible to receive benefits as beneficiaries (Arkansas, Delaware, Florida, Kentucky, Pennsylvania). Other states limit coverage based on: The length of time a migrant has been a citizen (Washington), or the cost of living in the alien resident beneficiary’s home country (Oregon). Alabama denies benefits to all foreign beneficiaries.”64 (internal citations omitted)

Such policies obviously disproportionately affect the families of guestworkers killed on the job.

Forestry Injuries Common

The forestry industry illustrates the problems many guestworkers face in gaining access to benefits. Getting injured on the job — either in the forest or in the van traveling to and from the forest — is a common occurrence for tree planters. They rarely receive any compensation for these injuries.

In their 2005 investigative series about guestworkers in the forestry industry, journalists from theSacramento Bee wrote, “Guest forest workers are routinely subjected to conditions not tolerated elsewhere in the United States. ... They are gashed by chain saws, bruised by tumbling logs and rocks, verbally abused and forced to live in squalor.”65

Leonel Hernandez-Lopez of Guatemala was working as a tree planter in 2004 when he cut his right knee badly on the job. “I was very sick for 30 days, with six stitches on my wound,” he said. “I never received any help from the company, even having to pay for my own medicine from my own pocket. All the while I had to keep paying rent on the hotel room where I was staying, even though I made no money. … The only thing I received from the company was belittling, humiliation, mistreatment and bad pay.”

Mexican forestry worker Jose Luis Macias was spraying herbicides in 2005 and took a bad fall after stepping on a branch that snapped. “I fell backwards down about five meters and my leg ended up bent underneath me,” he said. “The supervisor told me, ‘Get up, get up,’ so that I would continue working. When he saw I did not want to get up, he said, ‘Don’t be a stupid wimp,’ so I had to keep spraying. My leg was swollen and I asked the crew leader to take me to the doctor. He told me … he didn’t have time to be taking me to the doctor. Finally I went to the doctor on my own. I have thousands of dollars in medical bills and I have never received any money for the time I lost from work. This was more than a year ago and my leg still swells, hurts and I almost can’t work.”

Enrique Napoleon Hernandez-Lopez cut his thumb while planting trees but didn’t receive medical attention for seven days. He spent 14 days in the hospital for an infection and nearly lost his thumb.

The pressure on workers to keep injuries to themselves is tremendous. Again, this is related to employers’ absolute control of the right of guestworkers to be present in, work in and return to the United States.

Workers who report injuries are sometimes asked to sign forms saying they are quitting. They are told that if they sign and go home, they may be allowed to come back the following year.

Injuries and workplace hazards are prevalent in other H-2B industries too. An investigation by Centro de los Derechos del Migrantes and American University Washington College of Law of the working conditions of female H-2B workers in Maryland’s crab processing plants found that “[w]ork-related injuries are common.” Virtually all of the workers interviewed reported having been cut while working; many reported having “injured themselves due to the sharp knives, crab claws, and the hurried pace of work.” Some employers discouraged the workers from properly treating their cuts, putting them at risk of contracting a potentially fatal infection caused by seaborne bacterium. In violation of federal Occupational Safety and Health Act requirements, most employers failed to provide workers with protective gloves. The vast majority of workers received no formal training by employers on safe crab-picking techniques.

While H-2B crab workers are entitled to workers’ compensation under Maryland state law, the investigation concluded that “most of these workers are not aware that they may be entitled to these claims, and even if they were, they lack the legal resources to pursue the claim, and fear retaliation by their employer.”66

Under the H-2 system, it is simply too easy for employers to cast aside injured workers with impunity.

Discrimination based on national origin, race, age, disability and gender is deeply entrenched in the H-2 guestworker system.

It often begins even before guestworkers are hired and is intended to ensure that U.S. workers are effectively locked out of the job.

Employers may bring in guestworkers only if U.S. workers are unavailable.77 As a result, the DOL requires employers to make an effort to recruit U.S. workers before it will approve their application for guestworkers. But because many H-2 employers simply prefer vulnerable foreign workers over domestic workers, employers often engage in discriminatory tactics to weed out U.S. workers.

For example, during an investigation into illegal or fraudulent activities within the H-2B visa program, the U.S. Government Accountability Office found that some employers “preferentially hired H-2B employees over American workers in violation of federal law.” Undercover investigators captured recruiters suggesting tactics that employers could use to discourage U.S. applicants, such as requiring them to demonstrate their ability to run around carrying a 50-pound bag, scheduling interviews before 7 a.m., and requiring drug testing prior to interviews.78

One recent case against a large agricultural grower further illustrates how employers discriminate against U.S. workers. After receiving complaints from dozens of U.S. farmworkers, the Equal Employment Opportunity Office (EEOC) filed charges against the agricultural company Hamilton Growers, Inc. (d/b/a Southern Valley Fruit and Vegetable, Inc.) in 2011 alleging that the grower discriminated against more than 600 U.S. workers based on race and national origin. Over the course of three years, the grower fired virtually all of its U.S. employees while continuing to bring in Mexican H-2A workers. The EEOC alleged that the termination of at least 16 African Americans “was coupled with race-based comments by a management official.” The grower also subjected U.S. workers to disparate working terms and conditions, giving them fewer hours or denying them work when guestworkers were allowed to continue working. Upon reaching a settlement in December 2012, U.S. workers succeeded in recovering $500,000 in back wages and damages.79

Employers also routinely engage in discriminatory practices when it comes to hiring guestworkers. In fact, one federal appellate court has placed its stamp of approval upon such discrimination. In Reyes-Gaona v. NCGA,80 the 4th U.S. Circuit Court of Appeals found that even explicit age discrimination in hiring H-2A workers was not unlawful. In that case, there was little dispute that the recruiter, Del-Al Associates, which recruited thousands of guestworkers to the United States, told Luis Reyes-Gaona, who applied in Mexico to be an H-2A worker in North Carolina, that it was the policy of the North Carolina Growers Association (NCGA), for whom Del Al was recruiting, that NCGA would not accept new employees over the age of 40. The court found that because this choice had occurred outside the territory of the United States, it was not actionable under the Age Discrimination in Employment Act.

Although it is possible that other courts will reach a different conclusion on this issue, there is little doubt that such discrimination is pervasive.81 Indeed, the ability to choose the exact characteristics of a worker (male, age 25-40, Mexican, etc.) is one of the very factors that make guestworker programs attractive to employers.

Discrimination is pervasive in the H-2 guestworker program, as employers often seek either men or women to perform certain jobs.

Marcela Olvera-Morales is a Mexican woman who worked as a guestworker in 1999 and 2002. In 2002, the EEOC issued a determination finding reasonable cause to believe that she faced unlawful discrimination on the basis of gender. She alleged that a recruiter – the International Labor Management Corp. (ILMC), which places thousands of guestworkers in U.S. jobs – systematically placed women in H-2B jobs while placing men in H-2A jobs, which provide better pay and benefits. Statistical data showed that the likelihood the gender-based difference in the granting of visas was due to chance was less than one in 10,000.82 As part of a 2009 settlement, the ILMC was required to engage in affirmative steps, including ongoing monitoring by the plaintiffs, to ensure that guestworkers who the ILMC placed were not subjected to gender discrimination.

Once in the workplace, it is not uncommon for guestworkers to be subjected to discrimination and harassment.

In 2006, welders and pipefitters coming from India on H-2B visas arrived on the Gulf Coast to work for Signal International, a marine industrial construction company. Although Signal employed hundreds of non-citizen workers, it required only the Indian workers to live on Signal property in cramped and guarded trailers that other Signal employees and Signal management called “the Reservation.” This segregated workforce created an environment in which non-Indian employees felt comfortable referring to the Indian workers as animals or by means of profane language. When the Indian workers requested better treatment, Signal fired those workers it perceived to be leaders of the effort to seek fair and dignified treatment.

Norma and other women from Hidalgo, Mexico, took guestworker jobs harvesting tomatoes in Florida only to find they were locked up at night by their employers and not allowed to communicate with others.

Through the SPLC, the H-2B workers filed complaints with the EEOC charging discrimination on the basis of race and/or national origin. Finding reasonable cause to believe that Signal discriminated and retaliated against the Indian workers on behalf of their race and/or national origin, the EEOC filed a lawsuit against Signal to seek compensation for the workers and to ensure Signal’s compliance with federal anti-discrimination laws.83

Sexual Harassment

Women are particularly vulnerable to discrimination. Numerous women have reported concerns about severe sexual harassment on the job. There have been no studies that quantify this problem among guestworkers. However, in a 1993 survey of farmworker women in California, more than 90% reported that sexual harassment was a major problem on the job.84

In 1995, EEOC representatives met with farmworkers in Fresno, Calif., as part of an effort to develop a more vigorous enforcement program in the agricultural industry. William R. Tamayo, regional attorney for the EEOC in San Francisco, said, “We were told that hundreds, if not thousands, of women had to have sex with supervisors to get or keep jobs and/or put up with a constant barrage of grabbing and touching and propositions for sex by supervisors.”85 The farmworkers, in fact, referred to one company’s field as the “fil de calzon,” or “field of panties,” because so many women had been raped by supervisors there.86

More recently, a study published in 2010 found that among 150 Mexican women and women of Mexican descent who were working the fields of California’s Central Valley, 80% said they had experienced some form of sexual harassment.87 That same year, the SPLC conducted in-depth interviews with approximately 150 immigrant women working in the U.S. food industry who were either undocumented or had spent time in the United States as undocumented workers. Virtually all of the women said sexual harassment was a serious problem, and a majority had personally experienced some form of it while working in the fields, packinghouses or processing plants. “Many, however, were not even familiar with the concept,” the SPLC report, Injustice on Our Plates, says, “As less acculturated immigrant women, they struggled to understand the notion of sexual harassment, let alone grasp the means and methods of reporting an incident. Indeed, many were not aware of their rights and seemed to regard incidents of sexual harassment and sexual violence as yet another unpleasant aspect of their job that they had no choice but to endure.” The report told the story of one Mexican women who was brutally raped by a supervisor after her shift at a meatpacking plant but refused to report the attack to police because of her fear of both the police and the rapist. Her complaint to the company was met with indifference.88

Given the acute vulnerability of guestworkers in general, one can extrapolate that women guestworkers are extraordinarily defenseless in the face of sexual harassment. Indeed, given the power imbalance between employers and their guestworkers, it is hard to imagine how a guestworker facing harassment on the job could alleviate her situation. Assuming that she, like most workers, had taken out substantial debt to obtain the job and given that she would not be permitted to work for any employer other than the offender, her options would be severely limited.

Martina*, a guestworker from Mexico, has first-hand experience with gender discrimination and sexual harassment. She came to the United States with an H-2B visa to process crabs. She knew from past work that men always process oysters and women always process crabs. And the men are paid higher wages than the women. One year Martina was brought in to work during oyster season. When she arrived at the airport, she was met by the plant manager who made it clear that she had been hired to be his mistress. The DOL has approved H-2B visas for this plant for years.89

It is no coincidence that these forms of discrimination exist in guestworker programs; many of the recruiting agencies tout the great benefits of hiring workers from one country or another.

Employers can even shop for guestworkers over the Internet at websites such aswww.labormex.com, www.maslabor.com, www.mexicanworkers.biz, or www.mexican-workers.com. One website advertises its Mexican recruits like human commodities, touting Mexican guestworkers as people with “a good old fashioned work ethic” who are “very friendly and easy to work with.”90

When employers are permitted to shop for workers as though they were ordering from a catalog, discrimination is the likely, perhaps inevitable result.

Guestworkers often face insurmountable barriers to enforcing their legal rights. Even when workers are able to vindicate their rights, they face significant obstacles to meaningful recovery. In practice, this means that very few guestworkers are actually compensated for their losses, and many unscrupulous employers are allowed to continue to import guestworkers with impunity.

The rights of guestworkers can be enforced in two ways: through actions taken by government agencies, mainly the Department of Labor (DOL), and through lawsuits filed by private attorneys, federally funded Legal Services (H-2A workers and H-2B forestry workers only) or non-profit legal organizations like the Southern Poverty Law Center (SPLC).

Workers face high hurdles to obtaining justice through either method. As a result, far too many are lured to the United States by false promises only to find that they have no redress for their injuries.

Lack of Enforcement

Government enforcement of basic labor protections has decreased for all American workers in recent decades. The number of wage and hour investigators in the DOL declined by 14% between 1974 and 2004, and the number of completed compliance actions declined by 36%. During this same period, the number of U.S. workers covered by the Fair Labor Standards Act increased by more than half — from about 56.6 million to about 87.7 million.95 The Brennan Center for Justice concluded in 2005 that “these two trends indicate a significant reduction in the government’s capacity to ensure that employers are complying with the most basic workplace laws.”96

Government enforcement of guestworker programs is similarly deficient. In 2011, the DOL certified 7,000 employer applications for H-2A workers97 but conducted only 157 investigations into H-2A employers that same year.98

The DOL’s monitoring of H-2B employers appears to be even less rigorous. According to a comprehensive list of DOL compliance actions, the Department cited only 27 H-2B employers for violations between 2007 and 2012.99 Given that the DOL certifies thousands of employers for H-2B workers each year, this indicates that the DOL is not likely conducting many investigations into program abuse. The SPLC’s extensive experience in the field also suggests that this is the case.

Guestworkers, like these tree planters, have virtually no way to enforce their rights in the face of widespread abuse.

Additionally, as a practical matter, the nature of the guestworker program makes the DOL enforcement of some provisions unrealistic. Regulations, for instance, require employers to provide H-2A workers with a minimum of three-fourths of the hours specified in the contract and to pay for their transportation home. But there is currently no mechanism, such as a certification by the employer, that allows the DOL to effectively monitor whether employers comply with these requirements. After the contract period expires, the worker must leave the country and is therefore not in a good position to take action to protect his rights.

When employers violate the legal rights of workers, the DOL takes little action to stop them from importing more guestworkers. Under program regulations, the DOL is empowered to debar or suspend an employer from participating in the program if the employer commits certain violations.100 In practice, however, debarment is rare. In 2010, the Office of the Inspector General criticized the DOL’s debarment and suspension activities, noting that the DOL “did not consider debarring 178 [foreign labor-certified] individuals or entities with convictions resulting from 42 investigations conducted by the Department’s OIG actions.”101 Between 2011 and 2013, roughly, the DOL debarred only 22 H-2A employers and six H-2B employers.102

Government officials have even demonstrated a lack of will to debar employers that commit the most serious abuses. For example, a forestry contractor was sued in North Carolina on behalf of a group of H-2B tree planters who were housed in a storage shed with only one cold water spigot to share between them. They cooked over fires and with a gas grill through the snowy North Carolina winter. The workers claimed that when they tried to leave, their supervisor locked the gates and refused to let them go unless they repaid money he had lent them to buy sleeping bags and fuel for the gas grill, and paid him rent for a portable toilet.103 The DOL’s Wage and Hour Division had earlier documented what it called “a woeful history of labor violations,” including unsafe living and working conditions and wage abuses. Yet the forestry contractor continued to receive permission to import guestworkers. When the DOL’s Employment and Training Administration refused to cancel guestworker services to this employer, North Carolina’s monitor advocate, a state official who is supposed to enforce farmworker rights, filed a complaint with the DOL’s inspector general. A year and a day after the filing of that complaint, 14 Guatemalan men employed by this forestry company were killed on the way to work when their van crashed into a river in Maine.104

The SPLC has also witnessed the DOL’s failure to sanction law-breaking employers. Even though a large class of H-2A workers represented by the SPLC sued their employer, Candy Brand, alleging egregious wage violations in 2007, and ultimately settled those claims for $1.5 million, the DOL continues to certify the company (now operating under the name Clanton Farms, LLC) for H-2A workers every year. SPLC clients who still work at the farm report that the company continues to violate wage and hour laws today.

Obstacles to Private Litigation

Because of the lack of government enforcement, it generally falls to the workers to take action to protect themselves from abuses. Unfortunately, filing lawsuits against abusive employers is not a realistic option in most cases. Even if guestworkers know their rights — and most do not — it is rare that workers will have access to an affordable, private attorney who will take their cases. Representation of migrant workers presents unique challenges, including language barriers and the fact that most workers will have to return to their country during the litigation, that tend to dissuade many private attorneys from filing guestworker cases.

Access to federally funded legal services presents other obstacles to guestworker representation.

While H-2A workers and H-2B forestry workers are eligible for representation by federally funded Legal Services lawyers, these lawyers are prohibited from handling class action lawsuits. Given workers’ enormous fears of retaliation and blacklisting, any system that relies on workers asserting their own legal rights is unlikely to bring about systemic change. Having access to class action litigation would at least permit cases to be brought by one or two workers brave enough to challenge the system.

For H-2B workers, the situation is perhaps even more dire. Although they are in the U.S. legally and are financially eligible, the vast majority are ineligible for federally funded legal services because of their visa status. As a result, most H-2B workers have no access to lawyers or information about their legal rights at all. Because most do not speak English and are extremely isolated, usually both geographically and socially, it is unrealistic to expect that they would be able to take action to enforce their own legal rights. Moreover, many of these workers have few rights to enforce.

A more fundamental barrier to justice is that guestworkers risk blacklisting and other forms of retaliation against themselves or their families if they sue to protect their rights. In the midst of one lawsuit filed by the SPLC, a labor recruiter threatened to burn down a worker’s village in Guatemala if he did not drop his case.105

This fear may persist even after workers’ legal claims have settled. The extent of H-2A workers’ fear of blacklisting was made clear to the SPLC during a 2012 trip to Mexico to assist tomato workers in claiming their settlement payments after these workers successfully sued their employer. Even though the lawsuit had been settled, workers were very reluctant to accept the money that was owed to them by the company for fear that the recruiters or the company would find out and retaliate against them by denying them the ability to get visas in the future.

As these examples demonstrate, the structure of the H-2 guestworker program is inherently erosive to workers’ rights: When a worker’s livelihood — and immigration status for those in the United States — is tied to a single employer, workers will always face nearly insurmountable barriers to enforcing their legal rights.

As this report shows, the H-2 guestworker program is fundamentally flawed. Because guestworkers are tied to a single employer and have little or no ability to enforce their rights, they are routinely exploited. The guestworker program also undercuts the interests of U.S. workers. It should be abolished. It should not be used as a model for immigration reform. If this program is permitted to continue at all, it should be totally revamped to address the vast disparity in power between guestworkers and their employers.

I. Federal laws and regulations protecting guestworkers from abuse must be strengthened:

• Congress should limit employer use of guestworker programs, particularly during periods of high unemployment. As long as guestworkers are available to employers regardless of the stability of the U.S. economy, employers will have a disincentive to hire U.S. workers.
• Guestworkers’ ability to enter the United States should not be dependent on a particular employer. In addition, workers should be allowed to change employers without sacrificing their visa status, like any other employee can. The current restriction denies guestworkers the most fundamental protection of a free labor market and is at the heart of many abuses they face.
• Congress should provide a process to allow guestworkers to gain permanent residency, with their families, over time. Large-scale, long-term guestworker programs that treat workers as short-term commodities are inconsistent with our society’s core values of democracy and fairness.
• Congress should expressly authorize the Department of Labor to oversee and regulate all guestworker programs, and should expressly authorize the Department to issue regulations with the force of law to conduct such oversight.
• Congress should regulate the recruitment of foreign workers. There is virtually no oversight of international recruitment activities, and the result is rampant fraud and abuse. To combat those abuses, Congress should create a federal agency or commission to monitor international recruiters and the recruitment of foreign workers. Congress also should require that employers bear all the costs of recruiting and transporting guestworkers to this country, including workers’ passport expenses. Congress should legislatively override the holding in Castellanos-Contreras v. Decatur Hotels, LLC, (5th Circuit), which states that employers are not responsible for the travel and visa expenses of many of their H-2B workers. Requiring guestworkers to pay these fees encourages the over-recruitment of guestworkers and puts them in a position of debt peonage that leads to abuse.
• Entities acting as labor brokers for employers that actually use the guestworkers should not be allowed to obtain certification from the Department of Labor to bring them in. Allowing these middlemen to obtain certification shields the true employer from responsibility for the mistreatment of guestworkers.
• Congress should make the employers who ultimately benefit from the workers’ labor strictly liable for any abuses during the recruitment process, regardless of whether the recruiter is an agent of the employer.
• Congress should require employers to pay at least the “adverse effect wage rate” in all guestworker programs to protect against the downward pressure on wages. Guestworker programs should not be a mechanism to drive wages down to the minimum wage.
• Congress should eliminate the barriers that prevent guestworkers from receiving workers’ compensation benefits. Workers currently must navigate a bewildering state-by-state system that effectively blocks many injured workers from obtaining benefits.
• Guestworkers should be better protected from discrimination on the same terms as workers hired in the United States. Permitting employers to “shop” for workers with certain characteristics outside of the United States is offensive to our system of justice and values of nondiscrimination.

Federal agency enforcement of guestworker protections must be strengthened:

• Congress should require that all employers report to the Department of Labor, at the conclusion of a guestworker’s term of employment and under penalty of perjury, on their compliance with the terms of the law and the guestworker’s contract. There currently is no mechanism that allows the government to ensure that employers comply with guestworker contracts.
• Employers using guestworkers should be required to post a bond that is at least sufficient in value to cover the workers’ legal wages. A system should be created to permit workers to make claims against the bond. Guestworkers, who must return to their country when their visas expire, typically have no way of recovering earned wages that are not paid by employers.
• There should be a massive increase in funding for federal agency enforcement of guestworker and U.S. worker protections. Guestworkers are extremely vulnerable workers, but there is scant government enforcement of their rights. U.S. workers are being unlawfully locked out of available jobs with little intervention or oversight from the Department of Labor.
• The Department of Labor should be authorized to enforce the terms in all guestworker contracts and job orders.
• The Department of Labor should create a more rigorous and streamlined process to deny guestworker applications from employers that have violated the rights of guestworkers. Employers who abuse guestworkers continue to be granted certification by the Department to bring in new workers.

III. Congress must provide guestworkers with meaningful access to the courts:

• Congress should make all guestworkers eligible for federally funded legal services. H-2B workers, except those in forestry occupations, are currently not eligible for legal aid services.
• Congress also should eliminate the “super restriction” that prohibits Legal Services Corporation-funded entities from using even their non-federal money to represent many guestworkers.
• Congress should lift the restriction on federally funded legal services that prohibits class action representation. Class actions are the most effective legal tool to change abusive employment practices. They are particularly important as a tool in guestworker cases, where workers are fearful of retaliation if they assert their legal rights.
• Congress should provide a federal cause of action allowing all guestworkers to enforce their contracts.

While these reforms will go far toward protecting guestworkers from exploitation, it is clear that guestworker programs are simply too flawed to benefit from small regulatory fixes. In reality, these programs are beyond repair. We are a nation of immigrants, not a nation of temporary workers. Temporary workers who come to the United States make a valuable contribution to our nation. They should be incorporated into our society as full members so that they too are entitled to the same benefits, rights, and protections enjoyed by all workers in the United States. The time has come for Congress to abolish — not expand — our shamefully abusive guestworker system.

The Southern Poverty Law Center would like to thank the many people who contributed to this report, in particular the guestworkers who told their stories. Organizations that provided valuable assistance include: the Farmworker Unit of Legal Aid of North Carolina, the North Carolina Justice Center, Florida Legal Services, the Migrant Farmworker Justice Project and Southern Migrant Legal Services.