02/2013

Close to Slavery: Guestworker Programs in the United States

In the debate over comprehensive immigration reform, various policymakers and business groups have suggested that Congress create a new or expanded guestworker program to ensure a steady supply of foreign workers for industries that rely on an abundance of cheap labor.

Congress should look before it leaps. The current H-2 program, which provides temporary farmworkers and non-farm laborers for a variety of U.S. industries, is rife with labor and human rights violations committed by employers who prey on a highly vulnerable workforce. It harms the interests of U.S. workers, as well, by undercutting wages and working conditions for those who labor at the lowest rungs of the economic ladder. This program should not be expanded or used as a model for immigration reform.

Under the current H-2 program overseen by the U.S. Department of Labor (DOL), employers brought about 106,000 guestworkers into this country in 2011 — approximately 55,000 for agricultural work and another 51,000 for jobs in forestry, seafood processing, landscaping, construction and other non-agricultural industries.

But far from being treated like “guests,” these workers are systematically exploited and abused. Unlike U.S. citizens, guestworkers do not enjoy the most fundamental protection of a competitive labor market — the ability to change jobs if they are mistreated. Instead, they are bound to the employers who “import” them. If guestworkers complain about abuses, they face deportation, blacklisting or other retaliation.

Bound to a single employer and without access to legal resources, guestworkers are routinely:

  • Cheated out of wages
  • Forced to mortgage their futures to obtain low-wage, temporary jobs
  • Held virtually captive by employers or labor brokers who seize their documents
  • Subjected to human trafficking and debt servitude
  • Forced to live in squalid conditions
  • Denied medical benefits for on-the-job injuries.

Former House Ways and Means Committee Chairman Charles Rangel put it this way: “This guestworker program’s the closest thing I’ve ever seen to slavery.”1

Congressman Rangel’s conclusion is not mere hyperbole nor the first time such a comparison has been made. Former DOL official Lee G. Williams described the old “bracero” program — an earlier version of the guestworker program that brought thousands of Mexican nationals to work in the United States during and after World War II — as a system of “legalized slavery.2 On paper, the bracero program had many significant written legal protections, providing workers with what historian Cindy Hahamovitch, an expert on guestworker programs, has called “the most comprehensive farm labor contract in the history of American agriculture.3 Nevertheless, the bracero workers were systematically lied to, cheated and “shamefully neglected.4

In practice, there is little difference between the bracero program of yesterday and today’s H-2 guestworker program. Federal law and DOL regulations provide a few protections to H-2 guestworkers, but they exist mainly on paper. Government enforcement of guestworker rights is historically very weak. Private attorneys typically won’t take up their cause. And non-agricultural workers in the program are not eligible for federally funded legal services.

The H-2 guestworker system also can be viewed as a modern-day system of indentured servitude. But unlike European indentured servants of old, today’s guestworkers have no prospect of becoming U.S. citizens. When their temporary work visas expire, they must leave the United States. They are, in effect, the disposable workers of the U.S. economy.

U.S. workers suffer as a result of these flaws in the guestworker system. As long as employers in low-wage industries can rely on an endless stream of vulnerable guestworkers who lack basic labor protections, they will have little incentive to hire U.S. workers or make jobs more appealing to domestic workers by improving wages and working conditions. Not surprisingly, many H-2 employers discriminate against U.S. workers, preferring to hire guestworkers, even though they are required to certify that no domestic workers are available to fill their jobs. In addition, it is well-documented that wages for U.S. workers are depressed in industries that rely heavily on guestworkers.

This report is based on interviews with thousands of guestworkers, a review of the research on guestworker programs, scores of legal cases and the experiences of legal experts from around the country. The abuses described here are too common to blame on a few “bad apple” employers. They are the foreseeable outcomes of a system that treats foreign workers as commodities to be imported as needed without affording them adequate legal safeguards, the protections of the free market, or the opportunity to become full members of society.

When the Southern Poverty Law Center published the first version of this report in 2007, we recommended reform or repeal of the H-2 program. Unfortunately, even after the enactment of modest reforms in recent years, guestworker programs today are still inherently abusive and unfair to both U.S. and foreign workers.

In the past several years, the DOL has proposed two sets of regulations to better protect non-agricultural H-2 workers – one related to wage rate guarantees and one more comprehensive set of regulations. These regulations also would better protect the jobs and wages of U.S. workers. Unfortunately for workers, neither set of regulations has gone into effect; employers have filed multiple lawsuits challenging them, and Congress has effectively blocked implementation of the new wage regulations. For workers, then, the abuses continue unabated. 

It is virtually impossible to create a guestworker program for low-wage workers that does not involve systemic abuse. The H-2 guestworker program should not be expanded in the name of immigration reform and should not be the model for the future flow of workers to this country. If the current H-2 program is allowed to continue, it should be completely overhauled. Recommendations for doing so appear at the end of this report.