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.

Uncategorized

Yesterday the General Counsel of the National Labor Relations Board said that McDonald’s Corporation could be held liable as a joint employer for labor violations at its franchise operations.  The Labor Board is considering complaints brought by McDonald’s employees who claim they were retaliated against by their employers after participating in protests back in November 2012, but the significance of this ruling goes far beyond the complaints pending before the Labor Board.

This decision is a huge victory for the fast food workers organizing to demand $15 and a union.  Corporations like McDonald’s have refused to negotiate with fast food workers, such as the members of NC Raise Up who have been organizing in North Carolina for the past year, claiming that they don’t set wages and don’t have power over how much the franchisees pay.  But yesterday’s ruling is based on the General Counsel’s conclusion that McDonald’s does, in fact, have substantial control over what happens in the individual stores.  McDonald’s won’t be able to hide behind that argument anymore.

This ruling may also signal how judges will rule in several wage theft lawsuits filed in March of this year which allege that McDonald’s is a joint employer and jointly liable with the local franchisees for violations of wage and hour laws.   Those lawsuits allege that through the  franchise agreements and monitoring of the local stores, McDonald’s has enough control over day to day operations to be considered an employer.