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Court Okays Labor Department Rule: Guestworkers Must Earn Prevailing Wages

4:53 pm in Uncategorized by Michelle Chen

(National Guestworker Alliance)

Originally published at In these Times

Each year, tens of thousands of immigrant “guestworkers” come to the United States on special employer-sponsored visas to work temporary jobs in landscaping, hotel housekeeping and other low-wage sectors. But for decades, these workers have been demonized and scapegoated, accused of hurting “native” U.S. workers by driving down wages. At the same time, the immigrants themselves have spoken out about their poor wages and working conditions, and have even gone on strike and organized independent labor movements to demand the same rights and wages as that of their American counterparts. It seems the only people who like this system, in fact, are the bosses who rely on a surplus army of imported temporary labor, denied the labor protections and legal rights of citizens.

In 2011, the Department of Labor (DOL) issued major reforms to a flagship guestworker program known as H-2B, which funnels tens of thousands of migrants annually into low-wage jobs in workplaces from Florida hotel chains to crabmeat canneries. Business groups, predictably, sued to block the regulations—but last week, an appeals court finally put their arguments to rest.

The reforms, which the DOL based upon an assessment of wage rates and labor market conditions for U.S. workers, mandate pay high enough to maintain prevailing wages in sectors that recruit guestworkers, and thus sustain current working conditions. The wage rules are part of a package of guestworker program reforms proposed by the DOL, that has long been stalled by Congress and court challenges but, with this court victory, can finally be implemented.

In Louisiana Forestry Association v. Secretary, U.S. Department of Labor, business associations representing the forestry, seafood processing and hotel industries, among others, argued that the Labor Department lacked the legal authority to impose the reforms and was impinging upon employers’ control over wages.

However, Meredith Stewart, an attorney with the Southern Poverty Law Center (SPLC), which represented the workers’ groups that joined the Labor Department in fighting the suit in court, points out that employers supported the previous, laxer regulations that made it easy to pay substandard wages. “It really wasn’t until the Department of Labor issued a wage rule that would lead to substantial increases for workers that employers decided to challenge their authority to issue any regulations for the program,” she tells Working In These Times. The new rules, she says, simply mandate that “to the extent that employers are going to employ foreign workers, those foreign workers and U.S. workers need to be treated equally and fairly.”

In court, the Labor Department and workers’ advocates cited the agency’s legal mandate, which explicitly directs regulators to protect workers from wage suppression and displacement by unscrupulous bosses. On February 4, the Third Circuit Appeals Court unanimously agreed that the Labor Department had the authority to make the reforms, rejecting the employers’ arguments.

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Unwelcome Guests: Work Visa Programs Cheat Global Labor, Build Global Capital

6:44 pm in Uncategorized by Michelle Chen

Workers with the New Orleans Workers Center for Racial Justice and the Alliance of Guest Workers for Dignity demonstrate against "sub-human working and living conditions" at the contractor Signal International. (Photo courtesy of Jobs With Justice via Flickr)

Cross-posted from In These Times. 

When immigration comes up in Washington, politicians either politely ignore the issue or engage in lively debate on how best to punish and get rid of undocumented workers. Yet lawmakers give a strikingly warm embrace to certain types of immigrants. Those are the “legal” ones who enter with special visas under the pretext of having special skills or filling certain labor shortages–like Silicon Valley tech jobs or seasonal blueberry harvesting. So what makes one kind of immigrant valuable and another kind criminal?

So-called guestworker programs attest to the arbitrary politics of immigration that has generated a perfectly legal, global traffic in migrant labor. A new report by the advocacy group Global Workers Justice Alliance reveals how various federal visa programs funnel workers into special high-demand sectors, like amusement park staff or computer programmers. Like their “illegal” counterparts, these workers are inherently disempowered: they may be dependent on employers for legal status in the U.S., have their wages regularly stolen, or suffer sexual or physical abuse. Many lack the access to the health care and overtime pay that citizen workers often take for granted. As products of globalization, they’re sometimes compelled to endure virtual indentured servitude to provide critical wage remittances to their families back home.

The economic logic is simple, according to the report: externalize the costs to those who can’t afford to challenge authority.

Especially of note are the visas outside Department of Labor supervision. Under these visas, workers who enter are structurally cheaper than U.S. workers, because employers are legally exempted from certain payroll taxes, legally able to pay wages lower than fair market wages, and/or legally empowered to pass on many basic costs associated with employment – such as transportation, visa fees, housing and more – to the workers.

Companies can also outsource unscrupulous labor practices to third-party manpower agencies, which are known to recruit workers with deceptive job advertising or discriminate against female job applicants. Read the rest of this entry →

On Hostile Ground, America’s Guestworkers Seek Justice

7:19 pm in Uncategorized by Michelle Chen

(Photo courtesy National Guestworker Alliance)

Cross-posted from In These Times

The debate around immigration in Washington brings the same smoke and mirrors each election cycle: anti-immigrant slogans about “securing the border” flashing alongside craftily worded policies to sustain the flow of cheap labor, legal or not. Politicians seem to want it both ways: keeping immigrants locked into a brutal underground workforce, while using mass deportation and constant abuse to exclude them from society.

One popular “compromise” policy on immigration, the “guestworker model,” perfectly weds the ideas of “free markets” and forced labor. For many years, special visa programs have allowed employers to hire temporary foreign labor at paltry wages with minimal oversight. It would be the ultimate captive labor force, except a few things get in the way–mainly that even these workers have some rights under the law, plus indentured servitude looks terribly out-of-date these days, even with Washington’s stamp of approval.

In recent months, young workers channeled into Hershey factory jobs under the J-1 visa “student exchange” program have protested against cruel, coercive working conditions.  Advocates have also called attention to exploited workers under the H2-B program, which places tens of thousands of temporary workers in trades like hotel services and landscaping. For years, various investigations and lawsuits have exposed systematic abuses of seasonal farmworkers in the H2-A program, who toil in conditions often akin to slavery.

The federal government has made some small steps toward addressing guestworker exploitation . As we’ve reported before, reforms to the J-1 program are apparently underway to rein in the abuse and trafficking of youth.

New revisions to the H2-B rules would tighten oversight of bosses to prevent them from skirting wage and hour laws and from retaliating against workers who file complaints. Employers would also have disclose the use of foreign recruitment services, which are known around the world for facilitating debt bondage and human trafficking networks. Read the rest of this entry →