A landmark decision in a federal lawsuit brought by the Southern Poverty Law Center will provide relief to thousands of legal, foreign guestworkers who typically are forced to pay exorbitant fees to obtain low-wage, temporary jobs in the United States.
U.S. District Judge Eldon E. Fallon, of the Eastern District of Louisiana, ruled this week that non-agricultural guestworkers who come to the United States under H-2B visas are entitled to the same protection under the federal Fair Labor Standards Act (FLSA) that all other workers in the United States enjoy. The judge has not ruled on damages.
The ruling means that employers must reimburse H-2B workers for the fees they pay for travel and associated costs. Guestworkers are typically required to pay fees ranging from as little as $500 to upwards of $10,000.
"The systematic abuse of guestworkers, who are mostly poor, begins in their home countries, where they are forced deeply into debt to pay outrageous fees simply for the right to work for less than a year at a time in the United States," said Mary Bauer, director of the Southern Poverty Law Center's Immigrant Justice Project. "This puts them in a desperate situation if their employer cuts their hours or abuses them in other ways, because under U.S. law, they cannot seek alternative employment."
The defendants in the case, Decatur Hotels LLC and its president, F. Patrick Quinn III – like many other employers across the hurricane-wracked Gulf Coast and throughout the nation – are taking advantage of the guestworker program to obtain cheap labor.
The ruling in Castellanos-Contreras, et al., v. Decatur Hotels LLC, et al., is an important precedent for the more than 100,000 H-2B guestworkers who enter the United States legally each year. It addresses one of the worst abuses in a system that many guestworkers describe as modern-day slavery. It also comes at a critical time, as Congress and the White House are negotiating immigration legislation that could include a massive new temporary worker program.
Lured by false promises made by aggressive labor recruiters working for Decatur, about 300 guestworkers from Bolivia, Peru and the Dominican Republic each paid between $3,500 and $5,000 for their jobs. Many sold assets or plunged their families into debt, only to find themselves held captive by a visa program that ties them to one employer.
"I worked in Mr. Quinn's hotels for next to nothing because I had to earn enough money to make back what I paid to get here," said Daniel Castellanos-Contreras, plaintiff in the case and worker leader in the Alliance of Guestworkers for Dignity. "Even though I was so tired at the end of the day, I would go to the meetings at night to help bring this lawsuit because I knew that this was important not just for our group, but for all guestworkers in the U.S."
The Southern Poverty Law Center and its co-counsels filed the lawsuit in August 2006, alleging that defendants violated the FLSA when the company failed to reimburse the workers for the inflated costs of their trip to New Orleans, including airfare, visa processing costs and other travel expenses.
Following Hurricane Katrina, the defendants applied to the U.S. Department of Labor (DOL) to bring in guestworkers, certifying that there were no U.S. workers willing or able to do the job. Recruiters promised 40-hour workweeks and plenty of overtime. Instead, workers found themselves working about 25 hours a week and sometimes far less, with no way to pay back the debt they had incurred.
In addition to the Center, the plaintiffs are represented by the National Immigration Law Center and civil rights attorney Tracie Washington, president of the Louisiana Justice Institute. They are also working with the Alliance of Guestworkers for Dignity, a project of the New Orleans Workers' Center for Racial Justice.
"This is a tremendous victory for all workers of color in New Orleans who for too long have been exploited by unscrupulous employers in the service industry," Washington said. "We will continue to fight on their behalf until we achieve true worker justice in New Orleans."
Attorney Marielena Hincapié, director of programs with the National Immigration Law Center, praised the workers who "organized themselves and courageously came forward to demand that they enjoy the same protections under U.S. labor laws. In doing so, they have exposed the almost nonexistent monitoring by the DOL and the lax labor law enforcement that plagues the current H-2A and H-2B visa system."