Guest Workers Rights For Their & Our Protection

One of the major components of the proposed Immigration Bill is the enlargement of the guest worker program, to up to 400,000. One concern is, particularly with unsure enforcement provisions throughout the Bill, whether guest workers would comply with returning to their home country. As great a concern is the extent to which guest workers depress wages for low-skill Americans. Both of these concerns are being debated in the Senate today.

North Dakota Democrat Sen. Byron Dorgan's amendment would eliminate the guest worker program entirely. The amendment offered by Sen. Jeff Bingaman, D-New Mexico, would cut the program in half.
Many Democrats don't like the program because they think it drives down wages for American workers and creates a permanent underclass of immigrant workers.
Republicans generally favor a strong guest worker program because businesses say they need the labor.

Whatever the outcome, whatever the number of guest workers, more attention needs to be paid to the rights of guest workers while here.

The Southern Poverty Law Center points out in a major report:

Under the current system, called the H-2 program, employers brought about 121,000 guestworkers into the United States in 2005 — approximately 32,000 for agricultural work and another 89,000 for jobs in forestry, seafood processing, landscaping, construction and other non-agricultural industries.

These workers, though, are not treated like "guests." Rather, they are systematically exploited and abused. Unlike U.S. citizens, guestworkers do not enjoy the most fundamental protection of a competitive labor market — the ability to change jobs if they are mistreated. Instead, they are bound to the employers who "import" them. If guestworkers complain about abuses, they face deportation, blacklisting or other retaliation.

Federal law and U.S. Department of Labor regulations provide some basic protections to H-2 guestworkers — but they exist mainly on paper. Government enforcement of their rights is almost non-existent. Private attorneys typically won't take up their cause.

Bound to a single employer and without access to legal resources, guestworkers are:
· routinely cheated out of wages;
· forced to mortgage their futures to obtain low-wage, temporary jobs;
· held virtually captive by employers or labor brokers who seize their documents;
· forced to live in squalid conditions; and,
· denied medical benefits for on-the-job injuries.
House Ways and Means Committee Chairman Charles Rangel recently put it this way: "This guestworker program's the closest thing I've ever seen to slavery."

In my opinion, it’s bad enough that we American consumers profit from importation of cheap goods produced in labor conditions that we won’t accept at home of American workers. I’m aware of the beneficial effects for Americans’ budgets and comforts, and that even such labor is preferable to none in many of those countries and may increase future opportunities. But, I’m also in solidarity with my grandparents who worked in Lower East Side sweat shops and a distant cousin who organized the ILGWU. Improving their conditions actually accelerated their ability to later improve themselves further, in keeping with the American Dream that they passed on to their children and grandchildren.

Importing unacceptable conditions into America is even more unacceptable than tolerating them abroad.

Below are the recommendations from the Southern Poverty Law Center. Some may be excessive or need adjustments, but read them for yourselves, and consider whether most are the basic decency required. Also, consider whether they would alleviate much of the concerns about unfairly depressing wages for Americans, by justly leveling the field. As to American employers and consumers, profits based on undue exploitation are not a right and a small percentage increase in produce prices is not an undue burden.

I. Federal laws and regulations protecting guestworkers from abuse must be strengthened:
· Guestworkers should be able to obtain visas that do not tie them to a specific employer. 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 allowing 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.
· Employers should be required to bear all the costs of recruiting and transporting guestworkers to this country. Federal regulations should be consistent with the 11th U.S. Circuit Court of Appeals decision in Arriaga v. Florida Pacific Farms. 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 require the Department of Labor to promulgate labor regulations for H-2B workers that are comparable to the H-2A regulations. It is unconscionable that H-2B workers do not have even the minimal protections available to H-2A workers.
· 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 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 nondiscrimination.
II. 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 allowing 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 protections. Guestworkers are the most vulnerable workers in this country, but there is scant government enforcement of their rights.
· The Department of Labor should be authorized to enforce all guestworker agreements. The DOL takes the position that it does not have legal authority to enforce H-2B guestworker contracts.
· The Department of Labor should create a 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 DOL 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 are currently not eligible for legal aid services.
· Because of the unique challenges faced by guestworkers, the restriction on federally funded legal services that prohibits class action representation should be lifted.
· Congress should provide a civil cause of action and criminal penalties for employers or persons who confiscate or hold guestworker documents. This common tactic is designed to hold guestworkers hostage.
Congress should provide a federal cause of action allowing all guestworkers to enforce their contracts.