Commentary

NLRBA lot of people are engaged in nonstandard employment today.  Whether you call it contingent work, the gig economy, the “sharing” economy or outsourcing, they are all models in which the workers who perform labor do not have a recognized employer-employee relationship with the business or entity for whom they are performing labor.  These models have become more prevalent over the last thirty years or so.  The use of temporary staffing companies to supply labor, or “temps,” is just one example.  Temps used to be mostly used for white-collar secretarial work, but they have become increasingly common for blue-collar work such as manufacturing jobs, construction and janitorial work.

Our labor and employment laws have not kept up with this changing reality of work.  But in a 3-2 decision issued last week, the National Labor Relations Board has revised its joint employment standard to reflect the reality of these new employment relationships.  In a statement released last week by the NLRB, they explained:

“The revised standard is designed ‘to better effectuate the purposes of the Act in the current economic landscape.’  With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.”

The decision addressed the question of who were the employers of temporary staffing company workers and concluded that both the staffing company and the staffing company’s client where the workers were placed had sufficient control over the employees to be considered joint employers.  This is a victory for the workers and union involved because it means that the workers have a protected right to bargain with the larger company that controls the terms of their employment and not just with the staffing company.

It is also a victory for workers more broadly.  The growth of contingent employment has reduced the ability of workers to collectively bargain because layers of intermediaries have separated workers from the company that actually has power over their working conditions.  This decision — if it is not overturned when it is inevitably appealed– removes one incentive for employers to use labor intermediaries in order to avoid liability and restores a little bit of power to the workers.

Commentary

A BuzzFeed News Investigation published today, The New American Slavery: Invited to the U.S. Foreign Workers Find a Nightmare, details many of the abuses experienced by workers in the H-2A and H-2B visa program. One of the H-2 workers profiled by BuzzFeed put it simply:

We live where we work and we can’t leave. We are tied to the company. Our visas are in the company’s name. If the pay and working conditions aren’t as we wish, who can we complain to? We are like modern-day slaves.

This is certainly not the first report to highlight the problems with the two programs that allow U.S. employers to import foreign workers for unskilled labor– in March of this year the Government Accountability Office released a lengthy report about the problems with both visa programs and calling for increased protections for the workers.  But it comes at a time when employers who have built their business models around employing cheap foreign labor are using all of their political power to try to weaken workers protections and oversight of the programs.  A bill pushed by H-2B employers and approved by the Senate Appropriations Committee last month would eliminate long overdue protections which were finally published by USDOL and USDHS in April and which took effect immediately.

The BuzzFeed story is long and its not exactly light Friday afternoon reading, but it’s worth the time.  H-2A and H-2B workers are never going to be able to lobby Congress the same way their employers have been.  But maybe as more reports like this one are published and more people learn about this modern program that the workers describe as slavery, Congress will have to start paying attention to the workers’ voice too.

Commentary

A new report from the Economic Policy Institute compares the economic outcomes of three groups of Mexican immigrants working in the U.S.: legal permanent residents (LPRs), unauthorized workers, and H-2A and H-2B temporary visa workers. There are two federal visas that allow employers to import unskilled, foreign workers on a temporary basis: the H-2A visa for agricultural workers and the H-2B visa for other unskilled labor, such as seafood processing, landscaping and housekeeping. The report, “Authorized Workers, Limited Returns: The Labor Market Outcomes of Temporary Mexican Workers,” finds that although H-2A and H-2B workers are lawfully present, their legal status does not give them an advantage over unauthorized workers. Both groups are paid very low wages and are vulnerable to exploitation and abuse on the job. The author concludes:

“The results of these analyses point toward the need for reforming U.S. temporary foreign worker programs. If temporary foreign worker programs are to be a viable alternative to unauthorized immigration, temporary work visas must appeal to potential unauthorized immigrants and must reduce the risk of abuse that workers in these programs encounter. Currently, visa restrictions tying temporary foreign workers to a single employer undermine the economic opportunities available to these workers.”

Changing the H-2 visas so that employees could freely move from one employer to another would greatly increase their bargaining power and ultimately improve wages and working conditions, but unfortunately that doesn’t seem likely to happen. A new comprehensive rule for the H-2B program published by the Department of Labor (DOL) and Department of Homeland Security (DHS) adds critical worker protections, but there is no mention of visa portability. Nor is there any indication from DOL that it intends to modify the H-2A visa any time soon.

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Commentary

Farmworker Justice released a report last week analyzing 8 years of USDOL’s enforcement data of laws protecting farmworkers.  It should come as no surprise that the report, “U.S. Department of Labor Enforcement in Agriculture: More Must be Done to Protect Farmworkers,” found high rates of violation of both the Fair Labor Standards Act’s minimum wage requirement and basic protections afforded farmworkers under the Migrant and Seasonal Agricultural Worker Protection Act. However, the report also found that USDOL has improved its enforcement efforts in recent years.

The report caught the attention of David Weill, Administrator of USDOL’s Wage and Hour Division.  In response, Weill writes:

Agricultural workers are among the most vulnerable, at-risk populations that the U.S. Department of Labor protects. They are typically unaware of their rights, or afraid to speak up. They often fall victim to wage, health and safety violations as they toil for long hours, often in harsh conditions, to put food on tables across the nation. . .

We have made progress in protecting workers, yet, challenges remain and we must face them in the most effective, efficient ways possible. Since we will never be able to investigate or to provide training to every grower directly, we will continue to deploy our resources strategically to improve compliance as broadly as possible.  We are committed to strengthen the results of every investigation. We will not play a game of whack-a-mole correcting violations on a case-by-case basis. We find the causes of the violations and address them.

You can read his full blog post here.  Farmworker Justice and Weill both agree that USDOL must continue with the trend of more enforcement in order to deter agricultural employers from violating the basic rights of their employees and to protect hard-working farmworkers from abuse.

 

Commentary

The H-2B visa program – a program which allows employers to hire foreign workers, mostly from Mexico, to fill seasonal and temporary unskilled jobs in the U.S. — has been in the news lately because a recent federal court decision resulted in a temporary shut-down of the program by the federal Department of Labor (USDOL). Both the migrant workers who fill these jobs and the businesses who regularly use the H-2B program have, understandably, been concerned about the shut-down.

Last year, North Carolina was one of the top 10 states to use H-2B labor with 2,834 positions certified by USDOL. Landscaping is by far the top industry to rely on H-2B labor, but H-2B workers are also very common in North Carolina’s hospitality (as housekeepers) and seafood industries.

As of Wednesday of this week, however, USDOL has been allowed to resume processing H-2B labor certification applications until April 15th. After that, the program will again be at a standstill until USDOL and the Department of Homeland Security (DHS) issue new joint regulations for the program, which they have promised to do by April 30th.

Let’s hope the Obama administration makes use of this new rule-making as an opportunity to address the myriad problems identified in a new Government Accounting Office report  entitled “Increased Protections Needed for Foreign Workers.”  The GAO report found that H-2B workers are regularly subjected to abuses during recruitment, such as being charged exorbitant fees and not being provided accurate information about the job to which they are being recruited.

Sadly, mistreatment of H-2B workers frequently continues once they arrive in the U.S. to start work, as is described in “Picked Apart: The Hidden Struggles of Migrant Worker Women in the Maryland Crab Industry.” According to that report, women migrants are regularly subjected to deplorable working and living conditions, discrimination and harassment and often live in fear of their employers.

USDOL published new rules for the H-2B program in 2012 with strong worker protections which would have addressed many of these problems, but unfortunately, those rules never took effect. USDOL and DHS should now use the 2012 rule as a model to quickly issue new rules which keep the program running and improve the program by including important and needed worker protections. Stay tuned.