Litigation reveals extensive abuse of guest workers in the U.S.
As International Migrants Day passes and 2012 comes to a close, it’s a good time to reflect on a number of impressive victories guest workers won this year against employers who exploited, abused, trafficked and robbed them. Although these legal battles have been inspiring, most employer abuses of guest worker programs and guest workers themselves occur with impunity. Even when guest workers have their day in court, the victories are sometimes just moral ones and the victims are not made whole financially. Overall, the guest worker issues litigated in American courts this year are somber reminders that many employers are using these programs to erode labor standards.
The employer abuses that have been exposed and confirmed through court proceedings—and the judgments that vindicated foreign guest workers in 2012—occurred across visa categories and skill levels. The following are some examples:
- On Dec. 17, a federal jury in California awarded a group of 350 Filipino teachers $4.5 million in damages for the economic exploitation they suffered at the hands of their labor recruiter. The teachers came to the United States through the H-1B visa program for college-educated workers, and according to the American Federation of Teachers, the Filipino teachers paid their recruiter “about $16,000—several times the average household income in the Philippines—to obtain their jobs.” They also paid “3 to 5 percent interest per month” to lenders in order to pay off the fee, and “were forced to sign away an additional 10 percent of the salaries they would earn during their second year of teaching.” If they complained, they were threatened with deportation and liability for the debts incurred without a chance to earn any of it back.
- In July, a shocking New York Times editorial, “Forced Labor on American Shores,” described how guest workers brought to Louisiana through the H-2B program (for workers in non-agricultural occupations and without a college degree) were subjected to slave-like employment conditions. Thanks to the work of the National Guestworker Alliance, C.J.’s Seafood—the company at fault and one of Walmart’s seafood suppliers in Louisiana—was suspended by Walmart and fined a total of $248,000 by the Department of Labor (DOL). The fines were for a combination of 12 violations of “exposing workers to blocked exit, fire, electrical and chemical hazards,” and for failing “to pay minimum wage and overtime compensation to 73 workers as required by the Fair Labor Standards Act,” and for failing to comply with other H-2B program rules.
- Last month, in a negotiated settlement, three companies that cooperated to take advantage of more than 1,000 foreign student workers on J-1 visas working at a Hershey Co. plant in Pennsylvania agreed to compensate the workers for a total of $213,000 in back pay. Two of the companies were also fined a total of $148,000 by DOL and one of them agreed “to take steps to ensure compliance with federal workplace rules at its more than 300 other facilities across the country.” The student workers came to the United States through the State Department’s J-1 Exchange Visitor Program, which aims to facilitate a cultural and educational exchange in the United States for young people from abroad. In 2011, EPI revealed in detail how over several decades the J-1 program has morphed into a guest worker program that provides employers with hundreds of thousands of exploitable, captive and underpaid young workers. Later that year, the J-1 workers at Hershey garnered national attention on the front page of the New York Times after going on strike to protest their conditions. The three companies involved—Exel, SHS, and the Council for Educational Travel USA (CETUSA)—acted as layers of subcontractors working on behalf of Hershey’s, and this employment scheme ultimately insulated the Hershey Co. from liability for the harm suffered by the workers for Hershey’s benefit.
- In what is likely to be the largest sum ever awarded to guest workers in the United States, the Southern Poverty Law Center won a judgment of $11.8 million in October against Eller & Sons Trees, Inc., a forestry contractor in Georgia which cheated 4,000 Guatemalan and Mexican H-2B workers out of wages they were owed for planting trees. The employer failed to pay the H-2B workers the appropriate prevailing wage or even the federal minimum wage, violating the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act “multiple times.” One of the plaintiffs in the case said the workers’ pay “would come out to approximately $25 for a 12-hour workday.”
A federal criminal prosecution did not result in a monetary judgment for guest worker plaintiffs, but is worth noting because it serves as a chilling example of just how out of control and unregulated U.S. guest worker programs are:
- The Chicago Sun Times reported last month on the conviction and life sentence of a Cook County man who “beat, degraded and terrorized,” and forced undocumented and guest worker immigrant women into prostitution. The “sex-trafficking by force and extortion” the man was convicted of was facilitated in part through a labor recruitment company (technically called a “sponsor”) that processes the issuance of J-1 visas for those coming from abroad to work as au pairs. The judge in the case “questioned the actions of the au pair agency ‘Au Pair in America,’ which helped the women get their visas to come to the U.S. from Eastern Europe, then abandoned them.” Although few additional details about this case are yet available, it is telling that the judge took Au Pair in America to task publicly during the sentencing hearing.
All of these cases are depressing reminders of just how unregulated and unsafe U.S. guest worker programs are for the immigrant workers who participate in them. Although immigrant worker advocates can rightly feel buoyed by the significant sums awarded by courts to guest workers this year, the examples above are the tip of an iceberg of severe and systemic abuse that will persist into 2013 and beyond. Thus, they also serve as a lesson that any comprehensive solution for our immigration system must include major reforms and improvements to how guest worker programs operate, so that guest workers are not victimized and robbed by their employers, recruiters and traffickers, or used by employers to degrade wages and workplace standards for U.S. workers. The desires of employers and pundits who advocate for expanding these malfunctioning programs in their current state—often because they benefit from them directly—should not be catered to.