Guestworkers are far too often employed by undercapitalized employers and contractors who cheat them out of wages and then claim an inability to pay what courts have ordered is lawfully owed. While the H-2A regulations require farm labor contractors seeking H-2A workers to post a bond, neither of the H-2 programs require employers to post security or supply any proof of solvency before being certified for guestworkers. This lack of oversight has devastating results for guestworkers who take action against law-breaking employers.
Perhaps the starkest example of this was the class action lawsuit brought by H-2B guestworkers from Guatemala and Mexico who worked for forestry contractor Eller and Sons Trees, Inc. Until 2009, Eller and Sons was one of the largest forestry contractors in the United States and one of the largest employers of H-2B guestworkers, importing more than 750 workers per year. In 2008, the SPLC and its co-counsel won a comprehensive legal victory against the company. A Georgia federal court ruled that Eller and Sons and its owner, Jerry Eller, had engaged in the massive underpayment of a class of approximately 4,000 guestworkers over a 10-year period. The company and Eller stipulated that the damages owed to the class members based on the court’s rulings exceeded $11 million. However, rather than come into compliance with the law and pay workers the back wages they were owed, Eller simply stopped operating the company and filed for personal bankruptcy protection. The corporation had almost no capital investments and Eller had few personal assets available to creditors. Ultimately, the H-2B guestworkers — who are still owed more than $11 million in unpaid wages — will see very little recovery as a result of the bankruptcy proceedings. Eller and Sons, like other H-2B employers, was never required to post any type of bond or security that would have prevented the guestworkers from suffering this massive wage abuse without any recourse.