Barriers to Justice
Guestworkers often face insurmountable barriers to enforcing their legal rights. Even when workers are able to vindicate their rights, they face significant obstacles to meaningful recovery. In practice, this means that very few guestworkers are actually compensated for their losses, and many unscrupulous employers are allowed to continue to import guestworkers with impunity.
The rights of guestworkers can be enforced in two ways: through actions taken by government agencies, mainly the Department of Labor (DOL), and through lawsuits filed by private attorneys, federally funded Legal Services (H-2A workers and H-2B forestry workers only) or non-profit legal organizations like the Southern Poverty Law Center (SPLC).
Workers face high hurdles to obtaining justice through either method. As a result, far too many are lured to the United States by false promises only to find that they have no redress for their injuries.
Lack of Enforcement
Government enforcement of basic labor protections has decreased for all American workers in recent decades. The number of wage and hour investigators in the DOL declined by 14% between 1974 and 2004, and the number of completed compliance actions declined by 36%. During this same period, the number of U.S. workers covered by the Fair Labor Standards Act increased by more than half — from about 56.6 million to about 87.7 million.95 The Brennan Center for Justice concluded in 2005 that “these two trends indicate a significant reduction in the government’s capacity to ensure that employers are complying with the most basic workplace laws.”96
Government enforcement of guestworker programs is similarly deficient. In 2011, the DOL certified 7,000 employer applications for H-2A workers97 but conducted only 157 investigations into H-2A employers that same year.98
The DOL’s monitoring of H-2B employers appears to be even less rigorous. According to a comprehensive list of DOL compliance actions, the Department cited only 27 H-2B employers for violations between 2007 and 2012.99 Given that the DOL certifies thousands of employers for H-2B workers each year, this indicates that the DOL is not likely conducting many investigations into program abuse. The SPLC’s extensive experience in the field also suggests that this is the case.
Additionally, as a practical matter, the nature of the guestworker program makes the DOL enforcement of some provisions unrealistic. Regulations, for instance, require employers to provide H-2A workers with a minimum of three-fourths of the hours specified in the contract and to pay for their transportation home. But there is currently no mechanism, such as a certification by the employer, that allows the DOL to effectively monitor whether employers comply with these requirements. After the contract period expires, the worker must leave the country and is therefore not in a good position to take action to protect his rights.
When employers violate the legal rights of workers, the DOL takes little action to stop them from importing more guestworkers. Under program regulations, the DOL is empowered to debar or suspend an employer from participating in the program if the employer commits certain violations.100 In practice, however, debarment is rare. In 2010, the Office of the Inspector General criticized the DOL’s debarment and suspension activities, noting that the DOL “did not consider debarring 178 [foreign labor-certified] individuals or entities with convictions resulting from 42 investigations conducted by the Department’s OIG actions.”101 Between 2011 and 2013, roughly, the DOL debarred only 22 H-2A employers and six H-2B employers.102
Government officials have even demonstrated a lack of will to debar employers that commit the most serious abuses. For example, a forestry contractor was sued in North Carolina on behalf of a group of H-2B tree planters who were housed in a storage shed with only one cold water spigot to share between them. They cooked over fires and with a gas grill through the snowy North Carolina winter. The workers claimed that when they tried to leave, their supervisor locked the gates and refused to let them go unless they repaid money he had lent them to buy sleeping bags and fuel for the gas grill, and paid him rent for a portable toilet.103 The DOL’s Wage and Hour Division had earlier documented what it called “a woeful history of labor violations,” including unsafe living and working conditions and wage abuses. Yet the forestry contractor continued to receive permission to import guestworkers. When the DOL’s Employment and Training Administration refused to cancel guestworker services to this employer, North Carolina’s monitor advocate, a state official who is supposed to enforce farmworker rights, filed a complaint with the DOL’s inspector general. A year and a day after the filing of that complaint, 14 Guatemalan men employed by this forestry company were killed on the way to work when their van crashed into a river in Maine.104
The SPLC has also witnessed the DOL’s failure to sanction law-breaking employers. Even though a large class of H-2A workers represented by the SPLC sued their employer, Candy Brand, alleging egregious wage violations in 2007, and ultimately settled those claims for $1.5 million, the DOL continues to certify the company (now operating under the name Clanton Farms, LLC) for H-2A workers every year. SPLC clients who still work at the farm report that the company continues to violate wage and hour laws today.
Obstacles to Private Litigation
Because of the lack of government enforcement, it generally falls to the workers to take action to protect themselves from abuses. Unfortunately, filing lawsuits against abusive employers is not a realistic option in most cases. Even if guestworkers know their rights — and most do not — it is rare that workers will have access to an affordable, private attorney who will take their cases. Representation of migrant workers presents unique challenges, including language barriers and the fact that most workers will have to return to their country during the litigation, that tend to dissuade many private attorneys from filing guestworker cases.
Access to federally funded legal services presents other obstacles to guestworker representation.
While H-2A workers and H-2B forestry workers are eligible for representation by federally funded Legal Services lawyers, these lawyers are prohibited from handling class action lawsuits. Given workers’ enormous fears of retaliation and blacklisting, any system that relies on workers asserting their own legal rights is unlikely to bring about systemic change. Having access to class action litigation would at least permit cases to be brought by one or two workers brave enough to challenge the system.
For H-2B workers, the situation is perhaps even more dire. Although they are in the U.S. legally and are financially eligible, the vast majority are ineligible for federally funded legal services because of their visa status. As a result, most H-2B workers have no access to lawyers or information about their legal rights at all. Because most do not speak English and are extremely isolated, usually both geographically and socially, it is unrealistic to expect that they would be able to take action to enforce their own legal rights. Moreover, many of these workers have few rights to enforce.
A more fundamental barrier to justice is that guestworkers risk blacklisting and other forms of retaliation against themselves or their families if they sue to protect their rights. In the midst of one lawsuit filed by the SPLC, a labor recruiter threatened to burn down a worker’s village in Guatemala if he did not drop his case.105
This fear may persist even after workers’ legal claims have settled. The extent of H-2A workers’ fear of blacklisting was made clear to the SPLC during a 2012 trip to Mexico to assist tomato workers in claiming their settlement payments after these workers successfully sued their employer. Even though the lawsuit had been settled, workers were very reluctant to accept the money that was owed to them by the company for fear that the recruiters or the company would find out and retaliate against them by denying them the ability to get visas in the future.
As these examples demonstrate, the structure of the H-2 guestworker program is inherently erosive to workers’ rights: When a worker’s livelihood — and immigration status for those in the United States — is tied to a single employer, workers will always face nearly insurmountable barriers to enforcing their legal rights.