10/09/2008

Thousands of Cheated Guestworkers to Recover Lost Wages in SPLC Forestry Case

A federal judge's ruling this week means that thousands of foreign guestworkers represented by the Southern Poverty Law Center will recover wages owed to them by one of the nation's largest forestry contractors.

U.S. District Court Judge Clarence Cooper found that SPLC lawyers can seek unreimbursed expenses incurred by guestworkers employed by Eller and Sons Trees Inc. of Franklin, Ga. The summary judgment also found that actual damages sought by these workers can exceed $500,000. The employer had sought to cap the damages.

Now that SPLC lawyers have won the major legal arguments in the case, they must prove how much money is owed to more than 3,000 guestworkers who came to this country through the federal government's temporary guestworker program.

"This is a great victory for these forestry workers," said Mary Bauer, director of the SPLC's Immigrant Justice Project. "For too long this industry has seen guestworkers as a disposable workforce to be used, abused and thrown away. This decision is a signal that those days are coming to an end."

The ruling contains several key legal findings that can be used in the future to protect guestworkers from abuse, including a finding that held the president of the company, Jerry Eller, personally liable — a finding that can prevent companies from simply declaring bankruptcy to avoid a judgment.

Lured from Mexico and Guatemala, the guestworkers planted pine trees in the Southeast, the nation's largest timber-producing region. Eller and Sons Trees has been described as the largest forestry contractor in America.

The class action lawsuit — Escolastico de Leon-Granados et al. v. Eller and Sons Trees, Inc. — alleges violations of minimum wage and overtime protections, as well as other violations of the Migrant and Seasonal Agricultural Worker Protection Act. It was under this act that the judge found the actual damages sought by the workers could exceed $500,000.

The court also found that the representations an employer makes to the government on the H-2B visa applications — such as the total hours the employees will work per week — can be enforced by the workers even if they are unaware of what the employer reported to the government. This finding would hold an employer liable for a 40-hour work week promised on its application to federal government, even if the employer never made such an agreement with his workers.

The judge found that an employer cannot drive a worker's pay below the minimum wage rate by deducting expenses for things that primarily benefit the employer. This is a major issue for guestworkers, because they often find themselves deep in debt from fees charged for recruitment, travel and visa expenses. Once in debt, guestworkers have little recourse if they are abused or underpaid.

The court also found that the prevailing wage rate for the area — rather than the lower minimum wage rate — is protected from such deductions under this principle. This is the first time such a decision has been reached in a contested case.

The judge in this case found that the costs of passports, visas and other travel costs not only drove the workers' pay below the protected rate level but resulted in workers having "negative incomes" in their first week of work. The judge awarded $53,890 to the case's named and opt-in plaintiffs for expenses that were not reimbursed during their first work week, citing the Fair Labor Standards Act. Damages for the rest of the class, which is expected to reach into the millions of dollars, have yet to be determined.

"This case is another important step in reforming the abusive practices that are rampant in the forestry industry," Bauer said. "The message is becoming increasingly clear: Guestworkers have rights." The Legal Aid Justice Center of Virginia is serving as co-counsel in the case.

The SPLC has filed a number of lawsuits to stop the abuse of guestworkers. In March 2007, the SPLC issued a groundbreaking report, Close to Slavery, about the widespread, systematic abuses they face. The report documents rampant wage violations, recruitment abuses, seizure of identity documents and squalid living conditions. Guestworkers, whose visas do not allow them to change jobs, typically have little recourse if they are exploited.