As this report shows, the H-2 guestworker program is fundamentally flawed. Because guestworkers are tied to a single employer and have little or no ability to enforce their rights, they are routinely exploited. The guestworker program also undercuts the interests of U.S. workers. It should be abolished. It should not be used as a model for immigration reform. If this program is permitted to continue at all, it should be totally revamped to address the vast disparity in power between guestworkers and their employers.
I. Federal laws and regulations protecting guestworkers from abuse must be strengthened:
- Congress should limit employer use of guestworker programs, particularly during periods of high unemployment. As long as guestworkers are available to employers regardless of the stability of the U.S. economy, employers will have a disincentive to hire U.S. workers.
- Guestworkers’ ability to enter the United States should not be dependent on a particular employer. In addition, workers should be allowed to change employers without sacrificing their visa status, like any other employee can. The current restriction denies guestworkers the most fundamental protection of a free labor market and is at the heart of many abuses they face.
- Congress should provide a process to allow guestworkers to gain permanent residency, with their families, over time. Large-scale, long-term guestworker programs that treat workers as short-term commodities are inconsistent with our society’s core values of democracy and fairness.
- Congress should expressly authorize the Department of Labor to oversee and regulate all guestworker programs, and should expressly authorize the Department to issue regulations with the force of law to conduct such oversight.
- Congress should regulate the recruitment of foreign workers. There is virtually no oversight of international recruitment activities, and the result is rampant fraud and abuse. To combat those abuses, Congress should create a federal agency or commission to monitor international recruiters and the recruitment of foreign workers. Congress also should require that employers bear all the costs of recruiting and transporting guestworkers to this country, including workers’ passport expenses. Congress should legislatively override the holding in Castellanos-Contreras v. Decatur Hotels, LLC, (5th Circuit), which states that employers are not responsible for the travel and visa expenses of many of their H-2B workers. Requiring guestworkers to pay these fees encourages the over-recruitment of guestworkers and puts them in a position of debt peonage that leads to abuse.
- Entities acting as labor brokers for employers that actually use the guestworkers should not be allowed to obtain certification from the Department of Labor to bring them in. Allowing these middlemen to obtain certification shields the true employer from responsibility for the mistreatment of guestworkers.
- Congress should make the employers who ultimately benefit from the workers’ labor strictly liable for any abuses during the recruitment process, regardless of whether the recruiter is an agent of the employer.
- Congress should require employers to pay at least the “adverse effect wage rate” in all guestworker programs to protect against the downward pressure on wages. Guestworker programs should not be a mechanism to drive wages down to the minimum wage.
- Congress should eliminate the barriers that prevent guestworkers from receiving workers’ compensation benefits. Workers currently must navigate a bewildering state-by-state system that effectively blocks many injured workers from obtaining benefits.
- Guestworkers should be better protected from discrimination on the same terms as workers hired in the United States. Permitting employers to “shop” for workers with certain characteristics outside of the United States is offensive to our system of justice and values of nondiscrimination.
Federal agency enforcement of guestworker protections must be strengthened:
- Congress should require that all employers report to the Department of Labor, at the conclusion of a guestworker’s term of employment and under penalty of perjury, on their compliance with the terms of the law and the guestworker’s contract. There currently is no mechanism that allows the government to ensure that employers comply with guestworker contracts.
- Employers using guestworkers should be required to post a bond that is at least sufficient in value to cover the workers’ legal wages. A system should be created to permit workers to make claims against the bond. Guestworkers, who must return to their country when their visas expire, typically have no way of recovering earned wages that are not paid by employers.
- There should be a massive increase in funding for federal agency enforcement of guestworker and U.S. worker protections. Guestworkers are extremely vulnerable workers, but there is scant government enforcement of their rights. U.S. workers are being unlawfully locked out of available jobs with little intervention or oversight from the Department of Labor.
- The Department of Labor should be authorized to enforce the terms in all guestworker contracts and job orders.
- The Department of Labor should create a more rigorous and streamlined process to deny guestworker applications from employers that have violated the rights of guestworkers. Employers who abuse guestworkers continue to be granted certification by the Department to bring in new workers.
III. Congress must provide guestworkers with meaningful access to the courts:
- Congress should make all guestworkers eligible for federally funded legal services. H-2B workers, except those in forestry occupations, are currently not eligible for legal aid services.
- Congress also should eliminate the “super restriction” that prohibits Legal Services Corporation-funded entities from using even their non-federal money to represent many guestworkers.
- Congress should lift the restriction on federally funded legal services that prohibits class action representation. Class actions are the most effective legal tool to change abusive employment practices. They are particularly important as a tool in guestworker cases, where workers are fearful of retaliation if they assert their legal rights.
- Congress should provide a federal cause of action allowing all guestworkers to enforce their contracts.
While these reforms will go far toward protecting guestworkers from exploitation, it is clear that guestworker programs are simply too flawed to benefit from small regulatory fixes. In reality, these programs are beyond repair. We are a nation of immigrants, not a nation of temporary workers. Temporary workers who come to the United States make a valuable contribution to our nation. They should be incorporated into our society as full members so that they too are entitled to the same benefits, rights, and protections enjoyed by all workers in the United States. The time has come for Congress to abolish — not expand — our shamefully abusive guestworker system.