Indentured Servants, Circa 2009
The immigration imbroglio is the gorilla in the room that won’t go away.
Feeding on this and last years’ gigantic job losses and fear of more to come, anti-immigrant anger is exploding across the U.S. Thus, Nativists like Arizona’s Sheriff Joe Arpaio are nudged to over-the-top nastiness: Just a month ago, he proudly paraded his villains (aka illegals) through the streets of Phoenix before deporting them.
In fact, since 1882, when the U.S. passed its first anti-immigrant laws — at that time, against Chinese workers — Nativists have played the same xenophobia card: With fundamentalist fervor, they fire up those with fragile incomes to fear immigrants, legal or otherwise. Lately, local governments have passed punishing laws against undocumented workers, while enforcement agencies ratchet up raids on factories and farms.
At the same time, Chambers of Commerce insist foreign guest workers are vital to U.S. businesses. Heeding the call, politicians promise the guests will figure in any new immigration plan. Details, however, are absent.
What they don’t say is the U.S. guest worker saga is riddled with abuse. Nor do they mention it squeezes low-skilled domestic workers, who are also bullied in the race to the bottom and are routinely denied jobs, since the guests will work for anything under any conditions, given their desperation.
Thus, before the new administration answers the Chambers’ prayers, it must examine our guest worker schemes, which the Southern Poverty Law Center (SPLC) in a 2007 report calls “close to slavery.”
The schemes began during World War II with the Bracero program, when a half million Mexicans labored at American farms. Congress ended the program in 1964 because, among other reasons, exploitation was endemic.
In the 1980s, the U.S. launched two new plans — an H2A guest program for farm workers and H2B scheme for all other low-wage industries, such as poultry and seafood processing, construction, forestry, timber, restaurants and hotels.
Since then, employers have secured millions of guest workers: In 2008, the U.S. issued 124,000 temporary visas. The real number is far greater, because returning workers’ visas aren’t counted in the figure.
On paper, H2A rules are reasonable. Foreign workers apply in their countries and, when approved, get visas and contracts stating that employers must give the workers at least 75 percent of their promised hours, decent free housing, workmen’s compensation insurance (for injuries), transportation to and from their countries, access to free federal legal services and the same health/safety protections afforded U.S. workers.
In reality, the rules are a sham. According to Mary Bauer, SPLC’s director of its Immigrant Justice Project, guest workers are cheated every day in every way.
For H2B workers, there's not even a charade. They have no contracts, period.
For both sets of workers, the program should note that only the vulnerable need apply.
Why? Most important, the Department of Labor (DOL) regulations are stacked against them from the start, since they bequeath employers boundless power: Most critical, they only allow the guests to work for the company that gets their visas. No matter how abusive the arrangements, they can’t switch jobs. If they complain, they’re fired, must leave the U.S. within 30 days, pay for return tickets and lose remaining wages.
This spells financial disaster for the workers because they borrow heavily to pay recruiters’ bribes: An average $500-$2,000 in Mexico, $8,000-$12,000 in Thailand, $20,000 in India. Aware of their debt, employers secure their workers’ silence.
To make matters worse, a beneficent George W. Bush pushed through midnight regulations in December 2008 as a gift to U.S. companies: The new rules effectively slashed the guests paltry wages by $2-$3 an hour and scrapped housing standards: Before, the DOL had to certify that housing was safe. Now, employers must simply state that, “through no fault of their own” approved housing is unavailable.
Fortunately, President Obama just reversed the changes, but it will still take time for the new rules to kick in.
Holding the Cards
In fact, employers hold all the cards: They confiscate workers’ visas, passports and return tickets — though this is illegal. But illegality is irrelevant.
For example, although companies are required to pay hourly wages or equivalent piece rates, Bauer claims most firms ignore the rules most of the time. The case of Bimbo’s Best Produce (yes, Bimbo’s!), a strawberry grower in Louisiana, is instructive. In 2005, its workers sued for back wages and Bimbo settled. Bimbo applied for more workers in 2006 and 2007, the DOL gave the okay, and, undaunted, the company slashed wages to $3-$4 an hour — well below the minimum wage.
Forestry firms — notorious rule breakers — pay workers $15-$30 for every 1,000 seedlings they plant, which typically takes 12 hours — although the law says they should get $6-$10 an hour. But these firms are not unique. Bauer says almost every company in all sectors that SPLC checked lied about employee time sheets — with as many as 30 hours a week missing from paychecks.
Pay fraud is just one abuse. Housing is dilapidated and unsanitary: For example, the SPLC says that Evergreen Forestry in North Carolina kept workers in a shed with one cold water spigot, no heat or toilets throughout the winter. When workers tried to leave, a boss locked them up until they repaid what he’d lent them to buy sleeping bags, fuel and a portable toilet. Bauer insists these conditions are typical.
Regina Luginbuhl, chief of the North Carolina Department of Labor Agricultural Safety and Health Bureau, disagrees. She says H2A workers are protected against abuses because the program allows them to access free legal services. Also, she says H2A housing is usually “decent” because employers must register with her agency.
But in 2007, her office had just five full-time inspectors who checked only half the guest worker housing units. Now they have seven, and Delores Queensbury of North Carolina's DOL Communication Division says that in 2008, of 950 sites with H2A workers, they inspected nearly all.
Illness and injury are also common. Farm workers get dehydrated — several died in the past few years. Water, where provided, is often contaminated. Green sickness from picking tobacco, allergic reactions to pesticides or bee strings may be severe, but workers keep working.
A Sacramento Bee article noted “guest forest workers are routinely subjected to conditions not tolerated elsewhere in the U.S. ... .gashed by chain saws and bruised by tumbling logs.” When injured, companies rarely pay for medical care, days missed or medicine.
Finally, the DOL’s enforcement of the rules is feeble: In 2004, it checked violations at 89 out of the 6,700 farms with H2A workers. At the 8,900 work sites with H2B workers, the DOL inspected none.
When this reporter tried to update the numbers, Jennifer Kaplan and Susan Bohnert of the DOL’s Washington DC press office, insisted the agency doesn’t collect them. A supervisor repeated the story.
Without DOL data, advocate groups have no way to tally the true extent of violations, notes Ramon Ramos, a paralegal for 30 years with Texas Rio Grande Legal Aid: Their own statistics only cover a small number of worksites. Worse, when they try to get DOL figures, the states’ DOL offices, like the national one, stonewall.
Even when advocates like Legal Aid and SPLC learn of violations and win cases against employers, the DOL sits on its hands: H2B workers sued Shores and Ruark Seafood of Virginia for $150,000 in back wages and won, and the company was fined.
Although the DOL cited the company two other times for wage violations, it still approved the firm’s application for new workers. In Arriaga v. Florida Pacific Farms, a judge ruled the company had to repay workers’ transport and visas fees. But the DOL didn’t enforce the decision.
Bauer says another problem is that DOL’s program is completely hidden. “When a worker calls us about an abuse, we need to see his contract and learn if the DOL has inspected the workplace for violations.” But the DOL insists this information is “secret” — between employers and the DOL — and the SPLC must file Freedom of Information (FOIA) requests to get it.
And this, in turn, spells gridlock. When the SPLC filed a case against the Mississippi DOL in 2007 for not providing information, the judge ruled in SPLC’s favor. Displeased with the decision, the state promptly passed a law saying its DOL office was not obliged to give the information. Seizing on the successful strategy, Kentucky passed a similar law in 2008. Where local DOL offices do respond, the answers arrive two years later, when the workers are long gone.
The few workers who speak out — usually those who’ve already been fired or badly injured — are branded troublemakers and blacklisted. Baldemar Velasquez, president of the Farm Labor Organizing Committee (FLOC) said that before his union organized North Carolina’s guest farm workers, the state’s blacklist had 16,000 names.
Although the list was dismantled when the North Carolina Growers Association signed a contract with FLOC in 2004, blacklisting elsewhere is alive and well. Legal Aid’s Ramos says he hasn’t seen formal lists in other states, but knows the principle operates.
“Mexican guest workers tell me their previous U.S. employers won’t re-hire them.” Why? “They might have asked for water in the fields, or something like that. Not because they’re slackers. I’ve never met a guest farm worker who didn’t give 100 percent, because they want to return,” Ramos says.
Critics like Bauer and Ramos insist the abusers are not a few bad apples, but the norm. In 2008, the SPLC sued Signal International for 600 highly skilled Indian pipe fitters and welders hired to work on ships in Texas and Mississippi for defense contractors. (Signal is a subcontractor of Northrop Grumman).
Snared by ads that Signal ran in Indian newspapers promising high wages, along with permanent visas for workers and their families, each worker paid recruiters (illegally) $20,000 to land the job.
Once in the U.S., Signal paid entry level wages ($13 an hour); the jobs were temporary; families were not allowed to come; the men were kept in guarded labor camps and forced to work. SPLC charged Signal with human trafficking, fraud, racketeering and civil rights abuses; but the men are $20,000 poorer and stuck. Bauer adds that U.S. skilled workers’ wages would be at least double.
Critics also claim that the DOL and employers’ practices hurt companies that want to play by the rules, because they can’t compete with the majority, which break them. Critically, they lower wages and conditions for all unskilled workers.
The exploitation extravaganza begins even before the guests reach American shores. U.S. companies contract with foreign recruiting firms to find poor workers, who sign on — despite the recruiters’ bribes.
How do recruiters pull it off? FLOC’s Velasquez says workers don’t know this is illegal or how else to get in the program. Second, the DOL insists it doesn’t control what happens outside U.S. borders.
Velasquez says “The whole system is wildly profitable for everyone but the workers. Recruiting is very big business.”
Big enough to murder for.
In 2005, when FLOC opened an office in Monterey, Mexico to educate workers about their rights, its staff were stalked, slandered by local newspapers, and the office burglarized.
In 2007, a FLOC organizer, alone in the office, was murdered. Police caught one of the killers and FLOC gave them the names of two others. But the other two have not yet been arrested.
Observers say the DOL could improve conditions in a stroke — since it doesn’t need Congress to change the program: If it lifted the rule that ties the guest workers to one employer, the men would be free to bargain for a better deal or change employers, taking their visas with them. Eventually, the worst employers would lose their workers and have to clean up their acts.
Also, the DOL could offer H2B workers the same protections as H2A workers receive (on the books).
It could also crack down on employers that break the rules and levy fines that count. At the very least, it could reject violators’ requests for new workers.
But Velasquez says “unless all guest workers have labor rights, as FLOC won in North Carolina, they won’t be able to fight the abuses." Still, he’s optimistic.
“The state’s growers now run decent guest worker programs. Why not elsewhere?” he asks.
One hope is that Hilda Solis, the new Secretary of Labor, will right some decades-old wrongs. However, history isn’t on her or the guest workers’ side.
Barbara Koeppel is a free-lance investigative reporter based in Washington DC.
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