agriculture, immigration, News

More bad news for immigrant workers

While members of Congress seek to make the H-2A program cheaper and easier for employers by rolling-back worker protections, the US Department of Labor  continues to kick bad-actor employers out of the program. This week the USDOL’s Wage and Hour office in Raleigh announced that they had debarred two farm labor contractors from the H-2A guestworker programThis is just the latest in a series of such announcements, which underscores the flaws in the H-2A program.

The H-2A program allows employers to bring in foreign guestworkers to work in agriculture for up to 10 months.  By statute, H-2A visas are only supposed to be issued when importing foreign labor will not have an adverse effect on the wages and working conditions of the local workers doing the same kind of work.  To that end, DOL has passed regulations which govern the test of the local labor market which employers must first do before being permitted to bring in visa workers.

Additional regulations govern how workers – both H-2A visa workers and U.S. workers – are treated on the job, including setting a minimum wage, a minimum hours guarantee, the requirement that employers provide free housing which meets minimum standards and that employers reimburse the foreign visa workers for their inbound transportation costs and the expense of obtaining their visa.   The reimbursement requirement is important because visa workers usually arrive in the U.S. to begin working with significant debt, making it difficult for them to afford basic necessities, unlikely to complain about dangerous or illegal working conditions, and vulnerable to human trafficking as discussed in several publications (Close to Slavery, No Way to Treat a Guest) and articles (The New American Slavery: Invited to the U.S., Foreign Workers Find a Nightmare; “All You Americans Are Fired”).

This week’s announcement from the Raleigh USDOL office comes on the heels of similar announcements in April and May.  Worldwide Staffing, LLC, another H-2A Labor Contractor, was debarred by USDOL in April for  failing to reimburse employees for inbound expenses, owing wages,  failing  to provide adequate cooking facilities and overcharging for meals.  In May, USDOL announced they had debarred Marisa Garcia-Pineda, an H-2A labor contractor, who owed $195,735 in backwages, had charged illegal recruitment fees, and failed to reimburse the workers, among other violations.  That is all just from the last few months and there will be more this year.  Kudos to USDOL, but these actions represent a very small fraction of the problem because they can only debar employers from the H-2A program in the most extreme cases.

Despite the well-documented history of abuse of workers in the H-2A program, efforts in Congress to roll-back worker protections are ongoing.  Representative Goodlatte’s terrible Agricultural Guestworker Act was part of more comprehensive immigration legislation that was recently voted down in the House, but apparently Speaker Ryan has promised to address farm-labor legislation this summer.  In addition, the Trump Administration is expected to introduce new proposed rules for the H-2A program which would make it cheaper and more appealing to agricultural employers while undermining the basic protections for workers.

Courts & the Law

High Court ruling deals a blow to workers’ rights, class actions claims

Last month, in the Epic Systems, Corp. v. Lewis decision, the U.S. Supreme Court all but obliterated the ability of workers who are victims of the same workplace abuse to join together to bring class or collective actions, or to pursue their claims in court. The right of workers to join together to enforce workplace laws is the cornerstone of national labor policy. Federal law gives employees the right to engage in “concerted” – or group – activities for their “mutual aid or protection” and prohibits employers from interfering with this right. Unfortunately, Justice Gorsuch’s opinion held that despite that right, it is acceptable for employers to force their employees, as a condition of employment, to sign mandatory arbitration clauses which include class or collective action waivers.

These mandatory arbitration clauses bar employees from bringing their wage and hour, discrimination, and other employment claims as class or collective actions or from obtaining relief on behalf of a group of workers. Instead, employees must pursue their claims in closed-door individual arbitrations—an expensive process that has been shown to favor corporations over individuals.

Large employers have been requiring their employees to sign away their right to bring class and collective actions or to go to court with increasing frequency. Last year, a report by the Economic Policy Institute found that more than half of private sector nonunion employees were already subject to forced arbitration clauses and 30% of those employees had also signed class action waivers. In the wake of Justice Gorsuch’s Epic Systems opinion, those numbers are sure to increase. These agreements are good for employer because they know that if an individual employee has to pursue their claim alone, chances are slim they will actually pursue it. Not only do the workers risk termination or other forms of retaliation, but in the case of unpaid wage claims, the expense of litigating a case can easily dwarf the amount of unpaid wages for an individual employee. It is far more economical to pursue those claims as a group.

This type of systemic wage theft is no small problem. Earlier this month, a new report by Jobs with Justice and Good Jobs First, found that since 2000, employers have paid out $8.8 billion to employees in wage theft litigation. Not only that, the giant companies in the Fortune 500, Fortune Global 500 and Forbes list of largest privately held firms are some of the worst offenders, with Walmart leading the pack.

Because arbitration takes place in a private forum the decisions are usually secret and do not have the effect of curbing bad behavior by these employers by bringing it to light or by allowing victims to band together. The #MeToo movement has shown that when sexual harassment and sex discrimination violations are dealt with individually and in secret, the perpetrators- be they elected officials or large corporations – will continue to break the law.

Commentary, News

North Carolina and others ask the US Supreme Court to protect employees’ fundamental rights

North Carolina state government joined several other states last week in throwing its weight behind an important effort to defend basic protections for working people.

The right of workers to join together to enforce workplace laws is the cornerstone of national labor policy. Federal law gives employees the right to engage in “concerted” – or group – activities for their “mutual aid or protection” and prohibits employers from interfering with this right. Unfortunately, this cornerstone is under attack.

There is a growing trend among employers of requiring employees to waive this right by forcing them to agree to arbitrate any workplace disputes as a condition of employment. These mandatory arbitration clauses bar employees from bringing their wage and hour, discrimination, and other employment claims as class or collective actions or from obtaining relief on behalf of a group of workers. Instead, employees must pursue their claims in closed-door individual arbitrations—an expensive process that has been shown to favor corporations over individuals. In a trio of cases which have been consolidated together, the U.S. Supreme Court is going to weigh in on whether this practice is legal. Read more

Commentary

Workers left high and dry in salaried overtime decision

Typical workers impacted by overtime rule

Image: U.S. Department of Labor

December 1, 2016 was supposed to be a great day for an estimated 156,000 salaried workers in North Carolina. But thanks to a recent federal court order, yesterday instead brought disappointment and confusion for most of them.

For nearly seven months, thousands of North Carolinians have been anticipating an increase in their pay due to the Obama Administration’s new overtime rule for salaried workers.  The rule, which was announced on May 18, 2016 and set to take effect yesterday, would have raised the salary threshold for overtime eligibility from $23,660 per year to $47,476 per year, effectively raising the amount you must be paid in order for your employer not to have to pay you overtime. That means that *most* workers making less than $47,476 per year (or $913 per week) would have to be paid overtime for each hour over 40 in one workweek in addition to their salary. (This rule only changes one of the exemptions from overtime and does not apply in all workplaces and to all types of jobs. It has to do with what are often referred to as white-collar jobs, or the Executive, Administrative, Professional exemption.) The new rule also includes a mechanism to automatically update the salary threshold every three years.

But last week a judge in Texas blocked the new rule from taking effect.

Read more

Commentary

Congress, North Carolina should put more money into fighting wage theft

Photo: NC State AFL-CIO

Photo: NC State AFL-CIO

Too many workers in North Carolina are suffering from wage theft—when employers refuse to pay their employees all the money they have earned and are owed.

A recent op-ed in the Washington Post (via the N&O) rightfully called on Congress to give the US Department of Labor (USDOL) the funding it needs to better fight this problem. Wage theft comes in many forms: refusing to pay the required or agreed upon wage, refusing to pay one and a half the regular rate for overtime hours, misclassifying workers as exempt from overtime, treating workers as independent contractors when they are really employees, requiring tipped employees to participate in a tip pool with non-tipped workers, making unlawful deduction from pay and not compensating workers for all the time they are working.

“Enforcement should be a bipartisan issue. If politicians truly care about inequality and fairness, reducing reliance on public assistance, making sure that the system isn’t ‘rigged’ against the little guy, and, for that matter, ‘law and order,’ they should start by enforcing the laws already on the books – and by making sure hard-working Americans get every cent to which they are entitled.”

But, that isn’t the case. “In each of the past three years, the Obama administration has requested funding for more investigators; each time, Congress has denied the request.”

The good news is that USDOL has still managed to play an active role in enforcing wage and hour laws.  Read more