Investigations reveal forced labor of immigrants but Congress won’t allow the Labor Department to combat it
Congress holds the keys to fixing many of the problems in one of the main temporary foreign worker programs used by employers to displace U.S. workers, depress wages, and exploit foreign workers. The Department of Labor has already issued the important fixes, but they’ve been temporarily enjoined by a federal court. However, going forward, Congress is considering nullifying the rules entirely by denying funding for their implementation.
The program in question is the H-2B guest worker program. On Tuesday, I joined the Southern Poverty Law Center (SPLC), the AFL-CIO, and two H-2B guest workers from Central America at the National Press Club to call on Congress to help unemployed workers have increased access to jobs in a number of occupations—including landscaping, hospitality, forestry, and seafood processing—by allowing the DOL’s new rules governing the H-2B program to come into force. The new rules would require employers to first recruit unemployed workers before turning to foreign workers, ensure that U.S. and foreign workers are not underpaid, and protect guest workers from becoming victims of forced labor and human trafficking, as well as from being retaliated against if they attempt to assert their labor and employment rights.
Although the new rules include common sense protections for U.S. and foreign guest workers, they are far from extreme or burdensome. If anything, the rules and requirements on employers are quite basic and modest.
Recently, the scandalous side of the H-2B program received some well-deserved attention from the media. A few weeks ago, a New York Times editorial, “Forced Labor on American Shores,” offered a powerful and depressing reminder that the days of forced labor (also known as slavery) are still with us. In fact, the H-2B guest worker program helps facilitate it, and in the editorial’s case, forced labor was occurring for the benefit of Walmart, the largest private employer in the world, by C.J.’s Seafood, one of its suppliers. Walmart’s size and purchasing power give it leverage to demand the lowest prices possible from its vendors and manufacturers. This in turn, can motivate suppliers like C.J.’s in Louisiana to exploit and abuse their workers in order to bring down labor costs.
The Times piece succinctly describes what modern forced labor can look like in the United States:
The workers said the company forced them to work 16- to 24-hour days, and 80-hour weeks, at illegally low rates, sometimes locked in the plant, peeling crayfish until their hands felt dead. Some were threatened with beatings.
And, who are the victims?
These workers are not unauthorized immigrants toiling off the books. They came here legally under the H-2B program, which grants visas to low-skilled seasonal workers in industries that supposedly cannot find enough Americans to do the job. The program has been dogged by charges of wage abuses, fraud and involuntary servitude, including in investigations by the Government Accountability Office.
The Times piece highlights the brave and inspiring work of the National Guestworker Alliance (NGA), which did the difficult, on the ground organizing that allowed this scandal to come to light. The NGA, along with EPI, the SPLC, AFL-CIO, and other worker advocates and civil rights groups, have been criticizing the H-2B guest worker program for years because it does too little to protect vulnerable foreign workers, and too much to help employers pay their workers less than a fair wage, displace U.S. workers, and keep wages from rising in certain occupations.
There at least is some good news to report on the Walmart case: It was announced Tuesday that DOL is seeking nearly $250,000 in in back wages, fines, and penalties for the safety, minimum wage, and overtime violations committed by C.J.’s Seafood. The Guardian’s report about how the H-2B program was used in this context says it all:
In addition, CJ’s Seafood had violated the H-2B foreign worker programme, the Wage and Hour Division said, by misrepresenting its need for temporary foreign workers and refusing to pay the required wage rate.
“This employer took illegal advantage of the H-2B program, which put it in a position to undercut its competition that plays by the rules,” said Nancy Leppink, deputy administrator of the Wage and Hour Division.
“American workers seeking jobs should not be compelled to accept substandard wages and working conditions due to employers’ abuse of temporary foreign worker visa programs.”
Although this is an important victory for workers and businesses that operate legally, if the new H-2B rules are blocked by Congress, these forms of exploitation and abuse will continue to occur across the country.
The C.J.’s case illustrates how employers in the seafood industry are benefiting from the lack of regulation in the H-2B program. But landscaping, forestry, and lodging employers are also the principal beneficiaries of the cheap, exploitable labor the program continues to allow. Their collective lobbying efforts and legal strategy have paid off, for now. But from this point forward, they—along with the bipartisan group of legislators who put their interests above those of American workers—bear the most responsibility for the worker abuse, exploitation, and even human trafficking and forced labor that occurs under the guise of the H-2B guest worker program.