Many large employers who rely on guestworkers increasingly are attempting to avoid responsibility for unlawful practices by obtaining workers indirectly through a subcontractor. This use of labor brokers puts workers at greater risk of abuse and makes enforcement of their rights even more difficult than it is already.

A lawsuit filed by the Southern Poverty Law Center (SPLC) against the food giant Del Monte Fresh Produce vividly illustrates this problem.

The class action lawsuit was filed in 2006 on behalf of migrant farmworkers who were systematically underpaid while working in south Georgia for Del Monte subsidiaries. The plaintiffs are Mexican guestworkers as well as domestic farmworkers who were recruited to plant and harvest vegetables at Del Monte operations.

These workers were promised and were entitled to receive the Adverse Effect Wage Rate, which is established by the Department of Labor (DOL) each year to ensure that the employment of foreign workers does not drive down wages paid to U.S. workers. The plaintiffs, who are indigent farmworkers, left their homes and families and spent considerable sums of money to travel to Georgia to work for Del Monte. They were consistently cheated out of the wages to which they were entitled. But despite the fact that they labored on Del Monte farms and lived in housing provided by Del Monte, the company claims none of the workers were its employees.

Del Monte, in fact, accepts no responsibility for the workers because Del Monte was not the company that petitioned the government for the H-2A workers. The petitioner, rather, was a crew leader — a person with no fields, no crop, no farm, no housing and no capital.

Increasingly, the people bringing guestworkers into the United States are not the companies that end up using the labor, even though the entities applying to DOL for permission to import workers are required to prove a shortage of U.S. workers for available positions. Given that labor brokers have no actual "jobs" available, it is difficult to fathom that they are suffering from a shortage of workers. The DOL is approving these applications anyway.

In Florida, the majority of H-2A applications are now submitted through such intermediaries. This trend greatly concerns guestworker advocates because it permits the few protections provided for these workers to be vitiated in practice. Having a legal remedy against a labor contractor with no assets is no remedy at all.

Two recent lawsuits illustrate how labor brokers traffic in vulnerable foreign workers whom they hire out to a variety of different employers. These workers, who usually speak no English and have no ability to move about on their own, are completely at the mercy of these brokers for housing, food and transportation. No matter how abusive the situation, even if they are not paid and their movements are restricted, they typically have no recourse whatsoever.

Guatemalans Held Captive
According to a lawsuit filed in February 2007, 12 Guatemalan guestworkers claim they were held captive by agents for Imperial Nurseries, one of the nation's largest wholesalers of plants and shrubs. The men had been recruited to plant pines in North Carolina, but after they arrived in the state, they were transported by van to Connecticut and forced to work nearly 80 hours a week in nursery fields. They were housed in a filthy apartment without beds, and instead of the $7.50 an hour they were promised, they earned what amounted to $3.75 an hour before deductions for telephone service and other costs. Their passports were confiscated, they were denied emergency medical care, and they were threatened with deportation and jail if they complained. Some of the workers escaped without their passports and soon were replaced by fresh recruits from Guatemala. Eventually, one of the workers managed to explain his situation to the congregation of a local church, which helped him find legal aid.

In a statement to The New York Times, a lawyer representing Imperial Nurseries said the allegations "relate to the conduct of an independent farm labor contractor which was responsible for compensating its employees."

In a similar case, lawyers with Legal Aid of North Carolina are representing a group of Thai workers who have filed for immigration relief as victims of trafficking. These workers also have filed a federal lawsuit against a company called Million Express Manpower Inc. They claim the company held them captive — sometimes watching over them with guns — in North Carolina and in New Orleans, where they were transported to help demolish flooded buildings after Katrina.

These cases are symptomatic of a flawed program that encourages the private trafficking of foreign workers with barely any government oversight.