Close to Slavery: The U.S. Guestworker Program
by Mary Bauer
Southern Poverty Law Center
Pacific Vision Contributed Article
The debate over immigration reform has spawned legislative proposals to create a vast new pool of temporary foreign workers – potentially millions – who would be available to U.S. businesses seeking cheap labor. President Bush, in fact, has called for a “legal and orderly path for foreign workers to enter our country to work on a temporary basis.”
These proposals, however, overlook the fact that the United States has had a guestworker program for low-skilled laborers for decades — one that is largely hidden from view because the workers are typically socially and geographically isolated. Before we expand this system in the name of immigration reform, we should carefully examine how it operates.
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.1
These workers are, however, 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 and private attorneys typically won’t take up their cause.
Bound to a single employer and lacking 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.”2 Congressman Rangel’s conclusion is not mere hyperbole — and not the first time such a comparison with slavery has been made. Former Department of Labor official Lee G. Williams described the old “bracero” program — the guestworker program that brought thousands of Mexican nationals to work in the United States during and after World War II — as a system of “legalized slavery.”3 The H-2 guestworker system also can be viewed as a modern-day system of indentured servitude. But unlike European indentured servants of old, today’s guestworkers have no prospect of becoming U.S. citizens. When their work visas expire, they must leave the United States. They are, in effect, the disposable workers of the U.S. economy. In practice, there is little difference between the bracero program and the current H-2 guestworker program.
The H-2 guestworker program is inherently abusive and should not be expanded in the name of immigration reform. If the current program is allowed to continue at all, it should be completely overhauled.
|Tree planters. Photo by SPLC.|
A Brief History of the Modern Guestworker Program
In 1942, the U.S. State Department reached a bilateral agreement with Mexico creating the bracero4 program, which Congress later approved. But the bracero program was not perfect. Mexican workers, who generally did not read English, were often unaware of contractual guarantees. And there were numerous reports of employers shortchanging workers — just as in today’s H-2 guestworker program.
After the bracero program was dismantled in 1964, foreign workers could still be imported for agricultural work under the H-2 sections of the Immigration and Nationality Act. The H-2 program had been created in 1943 when the Florida sugar cane industry obtained permission to hire Caribbean workers to cut sugar cane on temporary visas. It was revised in 1986 as part of the Immigration Reform and Control Act, which divided it into the H-2A agricultural program and the H-2B non-agricultural program.
In 2005, the last year for which data are available, the United States issued about 89,000 H-2B visas5 and about 32,000 H-2A visas. The countries sending the most workers to the United States under these programs were Mexico, Jamaica and Guatemala; about three-fourths are Mexican. 6
Although the H-2A and H-2B programs offer different terms and benefits, they are similar in one significant way: Both programs permit the guestworker to work only for the employer who petitioned the Department of Labor (DOL) for his or her services. If the work situation is abusive or not what was promised, the worker has little or no recourse other than to go home. That puts the worker at a distinct disadvantage in terms of future opportunities in the United States, because his ability to return during any subsequent season depends entirely on an employer’s willingness to submit a request to the U.S. government. In practical terms, it means that an employee is much less likely to complain about workplace safety or wage issues.
In addition, the H-2 visas used by guestworkers are for individuals only and generally do not permit them to bring their families to the United States. This means that guestworkers are separated from their families, including their minor children, for periods often lasting nearly a year.
The H-2A program provides significant legal protections for foreign farmworkers. Many of these safeguards are similar to those that existed under the widely discredited bracero program. Unfortunately, far too many of the protections — as in the bracero program — exist only on paper.
The fundamental legal protections afforded to H-2A workers do not apply to guestworkers under the H-2B program. While the employer is obligated to offer full-time employment that pays at least the prevailing wage rate, none of the other substantive regulatory protections of the H-2A program apply to H-2B workers. There is no free housing. There is no access to legal services. And the H-2B regulations do not require an employer to pay the workers’ transportation to the United States.
Recruitment: Exploitation Begins at Home
The exploitation of guestworkers typically begins with the private agencies U.S. employers rely on to find and recruit guestworkers in their home countries. These labor recruiters usually charge fees to the worker — sometimes thousands of dollars — to cover travel, visas and other costs, including profit for the recruiters. The workers, most of whom live in poverty, frequently must obtain high-interest loans to come up with the money to pay the fees. In addition, recruiters sometimes require them to leave collateral, such as the deed to their house or car, to ensure that they fulfill the terms of their individual labor contract.
Typically, guestworkers arriving in the United States face a fee-related debt ranging from $500 to well over $10,000. Many pay exorbitant interest rates on that debt. When that’s the case, they have virtually no possibility of repaying the debt by performing the work offered by the employer during the term of the contract.
Workers from Bolivia, Peru and the Dominican Republic each paid between $3,500 and $5,000 to obtain jobs with a New Orleans hotel chain after Hurricane Katrina. The company was replacing workers, many of the African Americans, who had held the jobs before the storm. The jobs were scheduled to last from three to nine months.
Angela (not her real name), who was a college student in the Dominican Republic, borrowed $4,000 for the opportunity but soon discovered she couldn’t earn enough to pay off her debt – and often didn’t even have enough to eat. Her visa did not allow her to seek other employment, and she fell deeper into debt. She and her mother, who was suffering from cancer, had signed an agreement with a recruiter promising to pay $10,000 if she didn’t finish the contract. “I felt like an animal without claws – defenseless,” she said. “It is the same as slavery.”
A prohibition on charging fees to workers for recruitment or transportation would help negate the financial incentive for the recruiting industry in Mexico and elsewhere to send more workers than are needed. Presumably, if the workers could not be charged, then employers would pay for recruiting, and they would recruit only the number of workers needed.
Exacerbating the problem further is the fact that many large employers who rely on guestworkers increasingly are attempting to avoid responsibility for unlawful practices by obtaining workers indirectly through a subcontractor. This use of labor brokers puts workers at greater risk of abuse and makes enforcement of their rights even more difficult than it is already.
|“In my sixth year of planting trees, I was poked in the eye with a branch [...]. This happened in January 2005 and I am still suffering. I cannot see well. Everything is blurry. [...] There was no help from the company. We are left to suffer while the company is making their money. I have the desire to return to work but I cannot [...]. If I had been wearing protective glasses that day, at best I would still be able to work today.”—Armenio Pablo-Calmo, H-2B guestworker, pictured above with his grand-daughter. Photo by SPLC.|
Holding the “Deportation Card”
The most fundamental problem with guestworker programs, both historically and currently, is that the employer — not the worker — decides whether a worker can come to the United States and whether she can stay Because of this arrangement, the balance of power between employer and worker is skewed so disproportionately in favor of the employer that, for all practical purposes, the worker’s rights are nullified. At any moment, the employer can fire the worker, call the government and declare the worker to be “illegal.”
Many abuses, perhaps most abuses of guestworkers, flow from the fact that the employer literally holds the deportation card. One of the most chronic abuses reported by guestworkers concerns the seizure of identity documents — in particular passports and Social Security cards.7 In many instances, workers are told that the documents are being taken in order to ensure that they do not leave in the middle of the contract.
There is no realistic mechanism for workers to recover their identity documents. Numerous employers have refused to return these documents even when the worker simply wanted to return to his home country. The Southern Poverty Law Center also has encountered numerous incidents where employers destroyed passports or visas in order to convert workers into undocumented status. When this happens, there is little likelihood of a worker obtaining assistance from local law enforcement officials. In many jurisdictions, lawyers representing workers advise them to avoid calling police because they are more likely to take action against complaining workers than against the employer.
In many instances, employers have quite explicitly used the threat of calling the U.S. Immigration and Customs Enforcement agency as a means of asserting control over the workers. For example, in one case where workers refused to work until they received their pay after not having been paid in several weeks, the employer responded by threatening to call immigration and declare that the workers had “abandoned” their work and were thus “illegal” workers.
Otto Rafael Boton-Gonzalez, a forestry worker from Guatemala, has experienced this type of intimidation first-hand. “When the supervisor would see that a person was ready to leave the job because the pay was so bad, he would take our papers from us. He would rip up our visa and say, ‘You don’t want to work? Get out of here then. You don’t want to work? Right now I will call immigration to take your papers and deport you.’ ”
Such threats are common and are made possible by a system under which visas are issued solely for employment with the petitioning employer.
Even when employers do not overtly threaten deportation, workers live in constant fear that any bad act or complaint on their part will result in their being sent home or not being rehired. Fear of retaliation is a deeply rooted problem in guestworker programs. In 1964, the Mexican-American labor organizer and writer Ernesto Galarza found that despite the prevalence of workers’ rights violations, only one in every 4,300 braceros complained.8
Wage and Hour Abuses
Despite federal law requiring the payment of the Adverse Effect Wage Rate to H-2A workers and the prevailing wage rate to H-2B workers (measures intended to prevent wages of U.S. workers from being driven down by the employment of foreign workers), in practice many guestworkers earn substantially less than even the federal minimum wage of $5.15 per hour.
Although an H-2B contract between employer and worker specifies a minimum hourly wage, tree planters are more often paid by the number of seedlings they plant. They are told that they are expected to plant at least two bags of 1,000 seedlings each in an eight-hour day, a task that is often impossible. Payment ranges from $15 to $30 per bag. At the average rate of 1,500 trees, a worker could earn between $22.50 and $45 a day, far less than the legally required wage. By law, the employer is obligated to make up the difference between the bag rate and the prevailing wage rate. This is rarely done.
In addition, most workers report working between 8 and 12 hours a day. But they rarely, if ever, earn overtime pay, despite the fact that they often work six full days a week and average well over 40 hours. In addition, they are routinely required to purchase their own work-related tools and incur other expenses and deductions, unlawfully cutting into their pay. These wage and hour abuses are common throughout all industries where H-2 workers work.
Another chronic problem faced by guestworkers is that employers recruit too many of them, a situation that leads to workers not being able to earn as much as they were promised.
DOL regulations require that H-2A workers be guaranteed 75 percent of the hours promised in the contract — a provision called the “three-quarters guarantee.” That does not mean employers always comply. Many of the terms in a worker’s job offer are simply not honored. The DOL’s inspector general found in 2004 that the North Carolina Growers Association overstated its need for workers and overstated the period of employment, factors that likely led workers to abandon their contracts early and not receive the return transportation to which they were lawfully entitled. 9
In the H-2B program, there is no regulation of the number of hours that must be guaranteed to workers. The DOL, in fact, asserts that it has no authority to enforce the provisions of an H-2B contract under most circumstances. Thus, if a worker arrives in the United States on an H-2B visa and is offered no work for weeks on end (and this has occurred many times) that worker has virtually no recourse. He may not lawfully seek employment elsewhere. He likely has substantial debts on which he must continue to make payments. As an H-2B worker, he more than likely is obligated to pay for housing; certainly, he must pay for food.
The ramifications to the worker of being deprived of work for even short periods are enormous under these circumstances. Fundamental to the problem is that the worker is not free to shop his labor to any other employer.
Injuries without Effective Recourse
Guestworkers toil in some of the most dangerous occupations in the United States.10 Fatality rates for the agriculture and forestry industries, both of which employ large numbers of guestworkers, are more than 10 times the national average. 11 Unfortunately, when H-2 workers suffer injuries on the job, all too often they are denied access to appropriate medical care and benefits. Those who are seriously injured face enormous, often insurmountable obstacles to obtaining workers’ compensation benefits.
In most instances, guestworkers are entitled to workers’ compensation benefits — on paper, at least. The reality is that many injured guestworkers are not able to obtain benefits. Because workers’ compensation is a state-by-state scheme, with varying rules, some states are more accessible to transnational workers than others. Many states have onerous rules that are simply incompatible with the visa requirements of guestworkers, who must return to their homes when their visas expire. Workers often lack the knowledge needed to negotiate the complex system in order to have benefits continue when they leave the United States.
|Tree planter. Photo by SPLC.|
When it comes to housing, guestworkers aren’t treated like “guests” of the United States at all. In fact, they are frequently forced to live in squalor. Many find themselves held captive by unscrupulous employers or labor brokers who confiscate their passports, restrict their movements, extort payments from them and threaten them with arrest and deportation if they attempt to escape.
Some guestworkers have even been held virtually captive by their employers in work camps. In 2003, the Palm Beach Post told the story of a group of women from Hidalgo, Mexico, who traveled to Cocoa, Fla., on guestworker visas to harvest tomatoes. They did not know they would be locked up at night. “El patron would put a lock on the gate where our trailers were, and he or a trusted worker were the only ones who could open it,” one of the women said. Another said, “After a time, they would not let us communicate with other people. Everything was locked up with a key.”
Housing for both H-2A and H-2B workers is often located in extremely isolated rural locations, subjecting workers to other kinds of difficulties. In most instances, workers lack both vehicles and access to public transportation. As a result, they are totally dependent upon their employers for transportation to work and to places like grocery stores and banks. Some employers charge exorbitant fees for rides to the grocery store. Much of the housing provided to workers lacks telephone service, isolating workers even further.
Lack of Government Enforcement
Government enforcement of basic labor protections has decreased for all American workers in recent decades. This decline in enforcement has particularly grave consequences for guestworkers, who are far more vulnerable to abuses than U.S. workers and in great need of government protection.12
The rights of guestworkers can be enforced in two ways: through actions taken by government agencies, mainly the DOL, and through lawsuits filed by private attorneys, federally funded Legal Services (H-2A workers only) or non-profit legal organizations like the Southern Poverty Law Center.
Because of the lack of government enforcement, it generally falls to the workers to take action to protect themselves from abuses. Unfortunately, filing lawsuits against abusive employers is not a realistic option in most cases. Even if guestworkers know their rights — and most do not — and even if private attorneys would take their cases — and most will not — guestworkers risk blacklisting and other forms of retaliation against themselves or their families if they sue to protect their rights.
While H-2A workers are eligible for representation by federally funded Legal Services lawyers, these lawyers are prohibited from handling class actions lawsuits. Given workers’ enormous fears of retaliation and blacklisting, any system that relies on workers asserting their own legal rights is unlikely to bring about systemic change. Having access to class action litigation would at least permit cases to be brought by one or two workers brave enough to challenge the system.
In addition, H-2A workers are specifically exempted from the major statute designed to protect agricultural workers in the United States from abuse and exploitation — the Migrant and Seasonal Agricultural Worker Protection Act (AWPA). Adopted in 1983, it replaced the Farm Labor Contractors Registration Act of 1963, which was enacted in the wake of the Edward R. Murrow film about farmworkers, Harvest of Shame, aired by CBS during Thanksgiving in 1960. Among other things, the AWPA provides migrant farmworkers a legal mechanism to enforce the terms of the promises made to them and the other terms of their agreement in federal court. But the powerful protections of that law are not available to H-2A workers.
For H-2B workers, the situation is perhaps even more dire. Although they are in the U.S. legally and are financially eligible, they are ineligible for federally funded legal services because of their visa status. As a result, most H-2B workers have no access to lawyers or information about their legal rights. Because most do not speak English and are extremely isolated, both geographically and socially, it is unrealistic to expect that they would be able to take action to enforce their own legal rights. Moreover, many of these workers have few rights to enforce.
Typically, workers will make complaints only if they are so severely injured that they can no longer work, or once their work is finished. They quite rationally weigh the costs of reporting contract violations or dangerous working conditions against the potential benefits. As a result, far too many workers are lured to the United States by false promises only to find that they have no recourse.
Discrimination based on national origin, race, age, disability and gender is deeply entrenched in the H-2 guestworker system.
Clients of the Southern Poverty Law Center who worked for Decatur Hotels, a luxury hotel chain in New Orleans, in February 2007 filed a complaint with the EEOC charging systematic discrimination on the basis of national origin. In that case, the employer filed three separate applications with the DOL to seek workers. Each job classification in the applications was to be paid at a different wage — $6.02 per hour for Bolivians, $6.09 per hour for Dominicans and $7.79 per hour for Peruvians. The rate that workers were paid was based solely on their national origin, regardless of the kind of work they actually performed.
Women are particularly vulnerable to discrimination. Numerous women have reported concerns about severe sexual harassment on the job. There have been no studies that quantify this problem among guestworkers. However, in a 1993 survey of farmworker women in California, more than 90 percent reported that sexual harassment was a major problem on the job.13
In 1995, the EEOC met with farmworkers in Fresno, Calif., as part of an effort to develop a more vigorous enforcement program in the agricultural industry. William R. Tamayo, regional attorney for the EEOC in San Francisco, said, “We were told that hundreds, if not thousands, of women had to have sex with supervisors to get or keep jobs and/or put up with a constant barrage of grabbing and touching and propositions for sex by supervisors.”14 The farmworkers, in fact, referred to one company’s field as the “fil de calzon,” or “field of panties,” because so many women had been raped by supervisors there. 15
Given the acute vulnerability of guestworkers in general, one can extrapolate that women guestworkers are extraordinarily defenseless in the face of sexual harassment. Indeed, given the power imbalance between employers and their guestworkers, it is hard to imagine how a guestworker facing harassment on the job could alleviate her situation. Assuming that she, like most workers, had taken out substantial debt to obtain the job and given that she would not be permitted to work for any employer other than the offender, her options would be severely limited.
Martina (not her real name), a guestworker from Mexico, has first-hand experience with gender discrimination and sexual harassment. She came to the United States with an H-2B visa to process crabs. She knew from past work that men always process oysters and women always process crabs. And the men are paid higher wages than the women. One year Martina was brought in to work during oyster season. When she arrived at the airport, she was met by the plant manager who made it clear that she had been hired to be his mistress. The DOL has approved H-2B visas for this plant for years. 16
|Norma, and other women from Hidalgo, Mexico, took guestworker jobs harvesting tomatoes in Florida, only to find they were locked up at night by their employers and not allowed to communicate with others. Photo (cropped) by Gary Coronado.|
It is no coincidence that these forms of discrimination exist in guestworker programs; many of the recruiting agencies tout the great benefits of hiring workers from one country or another. When employers are permitted to shop for workers as though they were ordering from a catalog, discrimination is the likely, perhaps inevitable result.
Clearly the H-2 guestworker program is fundamentally flawed. Because guestworkers are tied to a single employer and have little or no ability to enforce their rights, they are routinely exploited. The guestworker program should not be expanded or used as a model for immigration reform. If this program is permitted to continue at all, it should be radically altered to address the vast disparity in power between guestworkers and their employers.
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.
• Congress should provide a process allowing guestworkers to gain permanent residency, with their families, over time.
• Employers should be required to bear all the costs of recruiting and transporting guestworkers to this country.
• 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.
• Congress should require the Department of Labor to promulgate labor regulations for H-2B workers that are comparable to the H-2A regulations.
• 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.
• Congress should eliminate the barriers that prevent guestworkers from receiving workers’ compensation benefits.
• Guestworkers should be protected from discrimination on the same terms as workers hired in the United States.
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.
• 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.
• There should be a massive increase in funding for federal agency enforcement of guestworker protections.
• The Department of Labor should be authorized to enforce all guestworker agreements.
• The Department of Labor should create a streamlined process to deny guestworker applications from employers that have violated the rights of guestworkers.
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.
• Congress should provide a federal cause of action allowing all guestworkers to enforce their contracts.
These reforms are overdue. For too long, our country has benefited from the labor provided by guestworkers but has failed to provide a fair system that respects their human rights and upholds the most basic values of our democracy. The time has come for Congress to overhaul our shamefully abusive guestworker system. n
Mary Bauer is director of the Immigrant Justice Project of the Southern Poverty Law Center (SPLC). She is the former legal director of the Virginia Justice Center for Farm and Immigrant Workers, and the former legal director of the Virginia chapter of the American Civil Liberties Union.
This article condenses the SPLC’s detailed report of the same title, ‘Close to Slavery,’ which was based on thousands of interviews with guestworkers in a variety of industries. The report was distributed to every member of Congress and to journalists nationwide. It is available at:
4. The word “bracero” is derived from the Spanish word for “arm,” as in a farm hand or labor for hire. It refers both to the guestworker program operated between 1942 and 1964 and to individual, legally hired Mexican farm workers who participated in the program.
6. Department of State, NonImmigrant Visas Issued, 10/01/04 — 9/30/05, available at http://travel.state.gov/pdf/FY2005_NIV_Detail_Table.pdf
7. Unlike H-2A workers, those with H-2B visas must pay Social Security and Medicare taxes but have no prospect of receiving benefits under the programs. They also are subject to federal income tax withholding.
8. Ernesto Galarza, Merchants of Labor: The Mexican Bracero Story (Rosicrucian Press (1964) at 17; See also Michael Holley, Disadvantaged by Design: How the Law Inhibits Agricultural Guestworkers from Enforcing Their Rights, 18 Hofstra Lab. & Emp. L.J. 575, 585 (2001)
9. Office of Inspector General, Evaluation of the North Carolina Growers Association , March 31, 2004 See also Leah Beth Ward Lax Regulations Trouble Critics of Labor Pipeline, Desperate Harvest, Charlotte Observer, November 1, 1999
13 Cited in Lessons from the Fields: Female Farmworkers and the Law, Maria Ontiveros, 55 MELR 157, 168 (2003) (study by Maria Elena Lopez Trevino, The Needs and Problems Confronting Mexican American and Latin Women Farmworkers: A Socioeconomic and Human’s Right Issue (1995)(unpublished on file with author); Maria Elena Lopez Trevino, A Radio Model: A Community Strategy to Address the Problems and needs of the Mexican American Women Farmworkers (1989 MS thesis, Cal State University)
14. William R. Tamayo, Forging Our Identity: Transformative Resistance in the Areas of Work, Class, and the Law: The Role of the EEOC in Protecting the Civil Rights of Farm Workers, 33 U.C. Davis L Rev. 1075, 1080. (2000)