A federal court has issued a record $11.8 million dollar award to 4,000 foreign guest workers who were employed by a Georgia forestry company in 2005. The guest workers came from Mexico and Guatemala on H-2B visas. Once lured to plant pine seedlings, the workers found that they would not be reimbursed for their travel or visa expenses and that their hours differed from their H-2B contracts. In addition, the records of the hours they did work were not properly kept.
The contractor, Eller and Sons Trees, was eventually sued by the Southern Poverty Law Center (SPLC) on behalf of the workers:
The court sent a strong and clear message in this case that businesses employing guestworkers will be held accountable if they abuse or mistreat them,” said Jim Knoepp, senior supervising attorney for the SPLC. “Employers are now on notice that exploiting these workers will prove devastatingly costly.”
The order was issued on October 29th by the U.S. District Court for the Northern District of Georgia. It was not the first offense of this nature by Eller and Sons, according to the SPLC:
…the court found that Eller and Sons violated the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) multiple times.
The class action lawsuit –Escolastico de Leon-Granados et al. v. Eller and Sons Trees, Inc. – described violations of minimum wage and overtime protections, as well as other violations of the AWPA.
Descriptions of the violations include:
In a 2007 SPLC report, Close to Slavery: Guestworker Programs in the United States, the named plaintiff in the case, Escolastico De Leon-Granados, said he was consistently underpaid while working for the company.
“Our pay would come out to approximately $25 for a 12-hour workday,” he said. “At the end of the season, I had only saved $500 to send home to my family.”
Eller and Sons had been repeatedly investigated by the U.S. Department of Labor and fined for violating employment regulations but continued to receive the department’s approval to hire H-2B workers – highlighting a critical flaw in the guestworker program.
Among the other key findings in the court’s decision:
An employer cannot drive a worker’s pay below the minimum wage rate by requiring workers to pay expenses for things that primarily benefit the employer. The judge in this case found that the costs of passports, visas and other travel costs not only drove the workers’ pay below the protected rate level but resulted in workers having “negative incomes” in their first week of work.
Guestworkers who are paid the prevailing H-2B wage rate for the area cannot have their pay driven below that rate by expenses such as passports, visas and other travel costs. This was the first time such a decision had been reached in a contested case.
Guestworkers can enforce promises made by employers on H-2B visa applications – such as the total hours they will work per week. This shifts the balance of power by placing more power in the hands of guestworkers and deterring employers from abusing and mistreating workers in the future.