Wage and Hour Abuses
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 $7.25 per hour.
Legal Services attorneys have represented H-2A workers in hundreds of lawsuits against their employers. And more than 50 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.
The SPLC has encountered rampant wage theft in the agricultural, forestry, pine straw, and hospitality industries. Additionally, allegations of wage theft in other industries that rely heavily on guestworkers, such as seafood processing,42 landscaping43 and carnivals,44 have been made in lawsuits and administrative complaints filed by advocates throughout the country.
Wage theft of guestworkers in low-wage occupations can take various forms. Common practices include minimum wage violations disguised by complicated piece-rate pay schemes, underreporting of hours, failure to pay overtime, and making unlawful deductions from workers’ pay. According to the law, employers must cover the costs of items that principally benefit the employer, such as work tools, safety equipment, and — in most parts of the country — workers’ travel and visa expenses to come to the United States. Yet, employers routinely fail to reimburse workers for their travel and visa expenses,45 and they frequently make deductions from workers’ paychecks for items that are for the benefit of the employer.46 These practices, as well as more overt forms of wage theft, such as the underreporting of hours, result in the chronic underpayment of wages, exacerbating guestworkers’ already precarious situation in the United States.
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 $7.30 an hour to more than $12 per hour, depending on the year and the state — guestworkers employed as 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.47 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 SPLC 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 SPLC 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 2007, the SPLC filed a class action lawsuit against the Arkansas-based tomato operation Candy Brand, LLC for failing to comply with federally mandated wage protections in addition to the terms of the workers’ contracts.48 The company relied on hundreds of Mexican H-2A workers each season to harvest and pack tomatoes.
The workers each paid up to $3,500 in travel, visa and recruitment expenses for the opportunity to work in the United States. The company’s agents in Mexico had promised the workers decent wages. Rather than the hourly pay rate they were promised, however, the employers paid the workers who harvested tomatoes a flat rate of $50 a day. Under this pay scheme, the workers made less per hour than the Adverse Effect Wage Rate to which they were entitled as H-2A workers. Over the course of five years, the company cheated the tomato harvesters out of hundreds of thousands of dollars.
Candy Brand profited further by denying overtime compensation to its packing shed workers. “I often worked in the packing shed from 6 a.m. to 11 p.m. without a single day of rest,” said Juan Pablo Asencio Vasquez. “Our schedule was exhausting but we never received any additional compensation for the long hours we worked. After about a month, I approached the boss and told him that I was worried since I still had not been able to recoup the money I spent to come to the U.S. He said there was nothing he could do.”
Candy Brand also violated the law by failing to reimburse workers for the money they spent on visa fees and transportation costs from their hometowns in Mexico to Arkansas, effectively bringing their first week’s pay below the federal minimum wage. From 2003 to 2007, the company underpaid H-2A workers by more than $1 million by illegally shifting the burden of these expenses to its workforce.
After reaching a settlement agreement in December of 2011, workers succeeded in recovering $1.5 million in back wages and damages for a class of more than 1,800 workers. Despite the overwhelming evidence of worker exploitation presented in the lawsuit, the Department of Labor has continued to certify the tomato company (under the new name of Clanton Farms, LLC) to bring in H-2A workers for the tomato harvest.
In an attempt to stop this widespread wage abuse, the SPLC has filed seven class action lawsuits against large H-2 employers since 2004. To date, four of those lawsuits have been settled, resulting in employers and contractors agreeing to pay back wages to class members and change the way they do business.49 One case on behalf of forestry workers resulted in an $11 million judgment.50 The Candy Brand case, discussed above, resulted in a $1.5 million judgment for the tomato workers. One case is still pending.51