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Litigation Is Thy Fate: Lobbyists Continue to Do Everything in Their Power to Pay H-2B Workers Poorly

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It’s round two for industry groups and workers’ rights advocates as they move forward with litigation based on proposed rules to the H-2B visa program, which allows American companies to hire foreign workers for non-agricultural jobs when American workers cannot be found.  As we have noted in the past, the system is plagued by abuse, with H-2B visa holders often being forced into near-slavery conditions.  Attempts to set standards for the program by both the Bush and Obama administrations have been blocked by litigation.  Now, the same scenario is playing out again.

A history of the program and the legal battles it has face is provided by In These Times writer Rachel Luban:

For decades, H-2B operated virtually without official rules. Until 2008, the federal visa program, which brings in foreign workers to do temporary, non-agricultural jobs when American workers supposedly cannot be found, was mostly regulated by informal “guidance letters” from the Department of Labor (DOL). The Bush administration issued a formal rule broadly regulating the program for the first time in 2008, and for four years, that was that.

Then, in 2012, the Obama administration issued a new comprehensive rule to replace the Bush rule. This one had much stronger worker protections—guestworker advocates had long complained that the program was riddled with abuse and exploitation, and they saw the Bush rule as a step backward. Fraud in the recruitment process was rampant; workers arrived to the U.S. in debt and desperate; some sat around without enough work to pay back their debts while others worked long days for pittances. They were often too scared of retaliation to assert the rights they did have.

The Obama rule addressed some of these problems: For the first time, bosses were required to give workers contracts in a language they understood. Workers would be guaranteed at least three-fourths of the hours in those contracts. Employers, not workers, would be responsible for transportation costs to and from the U.S. (Similar provisions already apply to H-2A workers, the agricultural counterpart of H-2B workers.) But the rule never went into effect. A coalition of industries groups sued to block it on the grounds that DOL lacks authority to regulate H-2B at all, setting off years of litigation.

Eventually the coalition succeeded in getting the Obama rule blocked. In response, worker advocates sued to get the Bush rule blocked. When they succeeded, the program once again had no formal rules—but this time, DOL saw that as grounds to cease operations. The program shut down for two weeks, prompting panic from employers and workers alike. DOL and the Department of Homeland Security (DHS) scrambled to issue new rules quickly. (The two agencies worked jointly to avoid the question of whether DOL has authority to regulate the program.)

Alas, the same employer groups that sued the Obama administration after it set its original rules is suing the Department of Labor and Department of Homeland Security.  According to the industry groups, the new rules would harm domestic workers, employers, and communities that employ H-2B labor.  They also argue the rules would “dramatically increase labor costs” and are “substantively arbitrary and procedurally invalid.”  

Landscapers are among the main supporters of the lawsuit.  Tom Delaney of the National Association of Landscape Professionals, one of the plaintiffs, argues that the rules are too restrictive and that the “three-fourths compromise” which guarantees workers at least three-fourths of the hours in their contract is impossible to enforce because of “a number of things that can affect the ability to keep those workers with that full amount of time, including bad weather.”

In response, Daniel Costa of the Economic Policy Institute (EPI) argues that employers who avoid paying American ‘corresponding employees’ the same wages they pay H-2B workers are “asking for the legal right to be able to discriminate against U.S. workers.”  Speaking to In These Times, Costa said:

“What they want the legal right to do—hire somebody from abroad for a low-wage job who has likely paid thousands in recruitment fees, and then have the ability to only provide that worker with part-time hours—is preposterous.”

Costa also rebuts the theory that the three-fourths compromise would put landscapers out of business, calling it “ridiculous”:

“If an employer can’t run a profitable business without underpaying and discriminating against his workers and not providing them 75 percent of the work hours the employer has already promised, then that employer probably doesn’t have a viable business.”


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