Despite federal law requiring the payment of the Adverse Effect Wage Rate to H-2A workers and the prevailing wage rate to H-2B workers, in practice many guestworkers earn substantially less than even the federal minimum wage of $5.15 per hour.

Legal Services attorneys have represented H-2A workers in hundreds of lawsuits against their employers. And more than 20 lawsuits have been filed on behalf of H-2B workers across the nation in recent years, many by the Southern Poverty Law Center. Given that only a handful of lawyers provide free legal services to these low-wage workers, these numbers reflect a grave problem: Employers using the services of guestworkers in many industries routinely violate basic labor laws.

To understand the wage and hour issues faced by workers, it is useful to examine two industries — forestry and seafood processing — that have become reliant on guestworkers for the majority of their labor. It is no coincidence that in both industries wage and hour violations are the norm, rather than the exception.

Forestry Workers
Although an H-2B contract between employer and worker specifies a minimum hourly wage — the prevailing wage, which has run in recent years from approximately $6 an hour to more than $10 per hour, depending on the year and the state — tree planters are more often paid by the number of seedlings they plant. They are told that they are expected to plant at least two bags of 1,000 seedlings each in an eight-hour day, a task that is often impossible. Payment ranges from $15 to $30 per bag.

An experienced hand-planting crew can average 1,500 well-planted seedlings per person per day. On rough sites, a worker might average just 600 trees per day; in open fields, a worker might plant up to 2,000 in a day. At the average rate of 1,500 trees, a worker could earn between $22.50 and $45 a day, far less than the legally required wage. By law, the employer is obligated to make up the difference between the bag rate and the prevailing wage rate. This is rarely done.

Most workers report working between eight and 12 hours a day. But they rarely, if ever, earn overtime pay, despite the fact that they often work six full days a week and average well over 40 hours. In addition, they are routinely required to purchase their own work-related tools and incur other expenses and deductions, unlawfully cutting into their pay.

Virtually every forestry company that the Southern Poverty Law Center has encountered provides workers with pay stubs showing that they have worked substantially fewer hours than they actually worked. Relying on interviews with more than 1,000 pine tree workers, the Center has concluded that this industry systematically underpays its workers.

Escolastico De Leon-Granados, an H-2B worker from Guatemala, said he was consistently underpaid while working for Eller and Sons Trees Inc. "We worked up to 12 or 13 hours and we could only plant 1,300 or 1,500 seedlings," he said. "Our pay would come out to approximately $25 for a 12-hour workday. At the end of the season, I had only saved $500 to send home to my family."

Because of the lack of enforcement by government officials and the vulnerability of guestworkers, this exploitation has continued largely unfettered for many years.

In an attempt to reform this widespread wage abuse, the Southern Poverty Law Center has filed four class action lawsuits against large forestry contractors since 2004. To date, two of those lawsuits have been settled, resulting in contractors agreeing to pay back wages to class members and change the way they do business. Two other cases are pending. Substantially similar allegations have been made in lawsuits filed by other advocates, several of which were settled with payment or entry of judgment.

Seafood Workers
In the seafood industry, workers in Virginia and North Carolina have filed at least 12 lawsuits against 10 companies since 1998. Most of the lawsuits contain virtually identical allegations: that workers were paid on a piece rate; that they did not earn the minimum wage; that there were unlawful deductions for tools, travel and uninhabitable housing taken from their pay; and that they were not paid overtime wages for hours worked over 40 in a week.

Virtually all of these cases were settled before trial. While a few were settled on confidential terms, a number of the settlements required the payment of substantial sums of money to the workers. In one case, Zamora v. Shores and Ruark Seafood, Inc., workers sued an employer that had been twice cited by the U.S. Department of Labor (DOL) for failing to pay minimum wage and overtime wages to its workers. Each time the company was fined by the DOL it continued this unlawful practice. Even so, the DOL continued to grant the company's requests to import H-2B workers to process seafood. In 1999, the company paid more than $103,000, excluding attorneys' fees and costs, to settle a lawsuit filed by 51 workers. A second suit ended in the settlement of claims by an additional 10 workers.

These lawsuits and DOL enforcement actions, while limited in scope, illustrate that wage and hour abuses of guestworkers are not a question of a few "bad apple" employers. Rather, when an industry comes to largely rely upon extraordinarily vulnerable guestworkers for the bulk of its labor, there is a race to the bottom in terms of wages to be paid. This creates problems for the workers but also for employers who want to comply with the law, because they are left at a competitive disadvantage relative to employers who cheat their workers.