New labor regs for non-agricultural guest workers around the corner

Art Read, an attorney with the Friends of Farmworkers organization and lead counsel in the lawsuit that resulted in an Aug. 2010 court decision forcing DOL to establish new regulations, did not dispute Veal’s claim that workers were often given extra hours during the peak of the season, but stated that the problem under the current regulatory scheme is that workers have no way of anticipating when their peak hours might be, and consequently often find themselves stranded in the United States without any income.

Read added, “I don’t think there is anything in the Department of Labor regulations that would forbid an employer from accurately describing that during peak times they’ll offer more hours, as long as they accurately describe what they intend the work schedule to be and that they offer full time work. In the past the work schedule has not been accurately described, and workers find themselves sitting around with very little work.” 

Captive workforce?

A key element of the H-2B program is that workers are prohibited from working for anyone except the sponsoring employer, leaving them with no legal means of finding work during those periods in which the sponsoring employer has little to offer them. The National Guestworker Alliance characterizes the arrangement as one that turns guest workers into a “captive workforce.”

Was the existing arrangement fair, Remapping Debate asked. “No employer brings a guest worker here feeling that they have an obligation to give him a full time job,” Veal replied.  “They’re serving their own employment needs. Bringing them here is not a benevolent act. If that’s the view, then everybody’s really on a different page here.”

DOL’s position is that that “few legal options exist for H-2B workers who feel their work contracts have been violated…A guaranteed number of hours may well be the only protection H-2B workers have if employers misrepresent the amount of work the workers will actually be provided.”

Paying to get here

An additional element of the proposed rules would require that employers “provide, pay for, or reimburse the worker in the first work week for the cost of transportation and subsistence from the place from which the worker has come to the place of employment.” Furthermore, employers “would also be required to pay or reimburse the worker for the H-2B worker’s visa, visa processing, border crossing, and other related fees.”

Nelson Carrasquillo of the Farmworker Support Committee identified this new rule as an important change for the quality of life of guest workers, stating, “The H2-B program has a long history of abuse in particular payment of transportation and visa.” The National Guestworker Alliance echoed this sentiment, stating in a press release that the proposed regulation “prevents employers from creating conditions of debt servitude: guest workers routinely take on crushing debt in order to get a visa.”

Neither Guillory, the crawfish processor, nor Veal of the American Shrimp Processors Association thought this requirement would impose significant costs on employers.

What about U.S. workers?

The H-2B program ostensibly is designed to permit employment of guest workers in circumstances where American workers are not available to perform the jobs and where the additional workers will not otherwise have a negative impact on the wages of American workers, and DOL hopes that the new rules will both bring the H-2B program closer to this stated goal and increase interest among unemployed Americans in jobs now being filled by H-2B workers.

Many employers are dismissive of the possibility that U.S. workers would be interested in the jobs, complaining that H-2B employers “will not be able to find interested U.S workers…regardless of the changes to wage methodology.”

Jacob Horwitz, lead organizer for the National Guestworker Alliance, took issue with this claim. “If those jobs were actually living wage jobs that could support families, I’m sure there are [Americans] who would want to apply for them.”

DOL, in its description on the new wage rule, does not believe that past difficulties in attracting American workers to these jobs is necessarily a useful guide to what they will do in the future: “By proposing a prevailing wage methodology that will pay wages that more closely reflect the average of wages paid in any occupation, the Department creates conditions under which unemployed U.S. workers will have access to job opportunities that they would in fact seek out, rather than those in which the pay is too low.”

When Remapping Debate asked Veal whether U.S. workers might be interested in the jobs once the prevailing wage was raised and a minimum time guarantee instituted, he stated, “I don’t know. To be honest I do not.”