Congress and the courts have reached conflicting decisions on wage rules and protections for vulnerable temporary workers; nobody knows what happens next.
Image from Flickr via Omar Omar
By Meaghan Winter
In 2000, a Mexican man I’ll call Diego called a number he’d gotten from a friend and was told to pay 3,700 pesos, about $300, for a United States temporary work visa and a job with a traveling carnival. Diego left his wife and daughters and rode the bus for four days to get to New England, paying for his lodging and food along the way. He and the other workers lived in a “dirty, small, unhygienic” house they set up behind the traveling fair. “The work is dangerous. When I’m at the carnival, I’m risking a lot,” he says. When he started working at the carnival, he and the other Mexican workers signed a contract that guaranteed them $350 per week—the level of pay their initial contracts promised them before they left home.
For their first week of setting up, cleaning, and manning the rides, the crewmembers were paid $90. Thereafter, for the duration of the nine-month contract, they were paid $270 a week for up to 80 hours of work—approximately $3.50 per hour, well below the federal minimum wage of $5.15. Diego had already invested in securing and traveling to the job and decided working for $270, though it was less than he’d been promised, was better than returning home empty-handed.
Diego holds an H-2B visa, a temporary work permit issued to unskilled, non-agricultural workers—in recent years, labor and business interests have tussled over control the H-2B program, whose 66,000 workers staff laborious industries like landscaping, carnival, and crab-processing among others. Last week a federal court ruled that the Department of Labor needs to increase wages for these workers, but on the very same day Congress, galvanized by industry lobbyists, blocked the funding necessary to enforce the new rule. The court gave the Department of Labor thirty days to comply with its ruling, but Congress’ refusal to fund the court’s order has created an impasse. For the moment, industry interests and lobbyists have beat out not only workers’ rights but also a federal court’s ruling. It’s unclear what will happen next.
Employers say they hire temporary workers because they can’t find Americans willing to pick crabs or plant trees. Critics say that depressed wages, not the work itself, make certain jobs undesirable.
Industry lobbyists setting the parameters of labor and immigration policy is nothing new. For decades after the federal minimum wage was established, for example, farmworkers could be paid less than the minimum wage, due to the efforts of a strong agribusiness lobby. Likewise, Senator Orrin Hatch’s current immigration proposal expands by almost fivefold the H-1B visa program for high-skilled workers, after tech companies like Microsoft and Facebook spent millions lobbying Congress. Senator Barbara Mikulski of Maryland has led the fight to block H-2B wages increases by writing provisions and speaking publically and on the Senate floor, demanding that cheap, unskilled foreign workers keep picking crabs in her home state.
Regulations for these vulnerable workers are complicated, the result of a bureaucratic labyrinth involving the Labor Department, Congress, and court system—in this case the shared jurisdiction has resulted in contradiction and uncertainty. In 2011, Congress mandated that the Department of Labor reform the H-2B visa program. Employers are supposed to pay temporary workers a standard rate that’s higher than the average industry wage so foreign workers don’t undercut Americans. But 96 percent of H-2B workers are paid less than the average wages in their industries. Acknowledging deflated wages, the department defined a new way of calculating wage ranges for certain temporary workers in its 2011 reforms. Based on the new formula, landscapers, for example, would make an additional $4.32 per hour, carnival workers like Diego another $6.61. Employers say they hire temporary workers because they can’t find Americans willing to pick crabs or plant trees. Critics of the H-2B program say that depressed wages, not the work itself, make certain jobs undesirable.
The industries that employ H-2B workers started fighting the new rules on two fronts: lobbyists urged Congress to stall enforcement of the new wages, and business associations sued the Department of Labor. In one suit The Chamber of Commerce joined up with landscaping and forestry associations to reverse the new set of worker protections and won. The district court blocked the 2011 protections, which are still in limbo as the case sits in appeals.
All temporary workers, whether tree planters or computer engineers, come to the United States on visas tied to their employers. So no matter how an employer treats him, a temporary worker can’t quit and stay in the country, and he’s likely earning less than the average wage for his work. Temporary workers don’t have a path to citizenship. Many workers come to the United States via a chain of subcontractors—from local men to transnational companies–as the logistics of hiring and transporting workers between countries compel businesses to outsource the recruitment and visa application process. As workers are passed along the chain they’re often asked, as Diego was, to pay illegal hidden fees—the Centro de los Derechos del Migrante, a worker advocacy group, found that over half of workers on the same H-2B visa as Diego pay recruitment fees to get their jobs.
These out-of-pocket expenses are just the beginning of the way the systems allows for these workers’ exploitation. Because they can’t legally switch employers, they’re stuck with whatever the work situation turns out to be, even if, like Diego, they’re paid less than minimum wage or have to live in unsanitary conditions. Workers often fear that if they complain they’ll be deported and blacklisted by recruiters or employers and won’t have a chance to work in the United States again. H-2B workers can’t access federally funded legal services, making it even more difficult for them to seek recourse for lost wages or other mistreatment.
Undoubtedly, many employers treat their workers with respect. But family members tend not to sue the federal government to restrict their relatives’ contractual rights and wages.
Diego, ever temporary, still spends nine months of every year in the United States. Each year he pays the recruiter to return to the carnival, and each year the recruiter’s promises prove to be false. Diego borrows $900 to pay for his visa, recruitment fees, and travel expenses and takes the long bus ride, knowing he’ll be paid about $3.50 an hour to live on the road, in the dirty back house. “It’s sad to work for people who could help you but don’t,” he says, “I go back to the carnival for my family, my daughters… I go with the dream that because of what I do my family will have peace. I don’t have any other reasons.”
Jim Allen of Bayou Lawn and Landscape Services, based in Valparaiso, Florida, decided to hire temporary workers about ten years ago when he struggled to fill seven crew positions with a rotating cast of sixty locals who routinely failed to show up for the “very difficult work.” He says he pays his crew’s visa and travel expenses from Mexico and, he rents their apartments for them, necessary because of “tremendous racial bias in town.” He says he wishes he could find local workers “as conscientious and hardworking, admirable.” The fact that many of the same men return each year, sometimes with friends, assures him he’s fair. Allen says, “I’ll bet a dollar against a donut that there are [employers] who aren’t scrupulous, but they’re the exception, not the rule.” Instead of making the H-2B program “unusable,” by raising worker wages, he argues, the Department of Labor could better monitor employers.
Allen is one of the plaintiffs in an ongoing suit against the Department of Labor, Bayou Lawn and Landscape Services v. Solis, the case mentioned above that is currently in appeals. Allen heard about a suit against the Department of Labor from his rep at Labor Consultants, the company that handles his applications for workers. He told me he joined the suit to stop rising wages. At its core, Bayou v. Solis asks whether the Department of Labor overreached its authority in creating new regulations. Meredith Stewart, an attorney at the Southern Poverty Law Center, points out that no businesses questioned the Department’s authority after its 2008’s industry-friendly regulations.
Landscaping companies contend with uncertainty, the whim of droughts and rainstorms that throw off their schedules and therefore incomes. If an employer needed to pay workers three-fourths of the wages guaranteed in initial contracts regardless of the weather, the employer would assume that inherent risk. Without the three-fourths provision, as the law stands now, the worker assumes that risk.
Ralph Egües, the Executive Director of the National Hispanic Landscape Alliance, an association of Hispanic landscaping professional who is also suing the Department of Labor, says that the three-fourths guarantee and other rules would cause his members’ businesses to “shrink, die or go underground,” for the regulations “punish people who follow the law instead of picking guys up in the Home Depot parking lot.” Egües says when labor organizations question H-2B workers’ wellbeing, his members, taken aback, respond, “When I look into the faces of these men I see my cousin, my brother.” Several industry advocates told me that workers “are like family.” Undoubtedly, many employers treat their workers with respect. But family members tend not to sue the federal government to restrict their relatives’ contractual rights and wages.
How do we set a living wage if employers have the world’s workforce at their disposal?
Each year Jim Allen gives a list of former workers to Virginia-based Del-Al Associates Inc., which sends agents in Mexico and Guatemala to prep those workers for their consulate meetings. Complying with the visa programs means filing complicated paperwork, so Ginny Muilenburg, an administrator at Labor Consultants International, based in Idaho, handles that for Allen. Muilenburg explains her job is “to keep employers in compliance” now that “the government is using strong-arm tactics… setting arbitrary wages.” She told me that America needs temporary workers in part because “some people would rather collect unemployment checks” than get jobs, and she claims that The Southern Poverty Law Center “sent women from Legal Aid in short skirts out to trick guys into telling crazy stories,” so such organizations’ research should not be trusted. “The problem is that the media keeps telling the trafficking story,” she says.
Muilenburg may be referring to a few recently publicized cases wherein the visa system colluded with post-Katrina dysfunction to create debt bondage. A placement agency, Universal Placement International Inc., used H-1B visas for high-skilled workers to install 350 Filipino teachers in Louisiana public schools, then charged the teachers $16,000 with interest and took their passports as collateral. Meanwhile, instead of hiring local workers to make repairs, Signal International, a marine manufacturer, promised 500 Indian welders jobs and green cards in exchange for recruitment fees between $10,000 and $20,000. The men sold their land, their wives’ jewelry, and borrowed huge sums, only to be kept in guarded labor camps on Mississippi’s coast.
“There is no trafficking going on,” Muilenburg tells me. Labor Relations International pays lobbyists, and Muilenburg describes herself as “active” in the H-2B coalition of businesses and associations seeking to block regulation. “We do everything we can to protect the employer. Their business is our business,” she says.
Though of course it’s true that most businesses that hire H-2B workers are not traffickers, it’s also clear that the opaque, complicated and subcontractor-controlled recruitment system, plus a system in which workers are legally tethered to their employers and cannot switch jobs or report abuses without fearing retribution, enables trafficking.
As the immigration debate is typically framed in terms of who’s “legal,” documented foreign workers have usually seemed benign to the American public, with the exception of labor groups, who’ve historically begrudged foreign workers. Cindy Hahamovitch, Professor of History at William & Mary College, explains that, “guest workers have always been perceived as a legal alternative but have always led to undocumented labor.” After World War II, Hahamovitch describes, an influx of foreign workers moved into Germany. When local unions chose to include the guest workers in their cause, all workers gained better protections. Recently American labor organizations have moved from their historic nativism to an embrace of immigrant workers.
Hahamovitch says, “Immigrant workers are have always done certain kinds of work. The question is: how will they be treated and under what terms? How do we set a living wage if employers have the world’s workforce at their disposal? The standard becomes ‘someone would do it…’ The right to quit, to organize, to free speech, these aren’t regulations, they’re rights.”
Meaghan Winter is a writer and teacher based in New York.