GUESTWORKERS WIN VICTORY IN U.S. DEPARTMENT OF LABOR’S PROPOSED CHANGES TO REGULATIONS FOR THE H-2B VISA PROGRAM
Proposed DOL regulations move guestworkers one step closer to inclusion in basic labor protections, civil rights, and the right to organize.
“When we started our organizing in labor camps across the South, we dreamed of dignity and respect at work. We urge all those on the side of dignity to say, loudly, that these new rules are right, so we can make that dream real.”
– Daniel Castellanos, founding member, National Guestworker Alliance
On March 17, 2011, the National Guestworker Alliance won a major victory and a vindication of five years of organizing, advocacy, and litigation as the Department of Labor proposed new regulations for the H-2B non-agricultural visa program. We laud these proposed regulations – now we have to ensure the Department of Labor adopts them as proposed. Businesses are gearing up to fight them. We urge all allies to submit written comments within the 60-day comment period to ensure these proposed regulations become law.
These new regulations, if adopted, will help prevent employers from manipulating the H-2B program to engage in labor trafficking and debt servitude of guestworkers. Among the proposed new policies, three are the most significant:
Employers must pay for all costs that workers incur on their way to the first day at work on the H-2B visa program. Under the new regulations, each employer must pay for transportation, visa, recruitment, and all other costs related to using the program. This prevents employers from creating conditions of debt servitude: guestworkers routinely take on crushing debt in order to get a visa. Arriving at work in debt, they cannot afford to organize or report an employer’s illegal conduct, because employers have the power to deport them back into debt servitude.
In 2007, founding members of the National Guestworker Alliance—among the first guestworkers imported to New Orleans after Hurricane Katrina—organized to hold their employer responsible for travel, visa, and recruitment costs. Each guestworker had paid approximately $5,000 in costs, plunging their families into debt. They were trapped in debt and their employer Decatur Hotels did not comply with its contractual promises. The DOL stood with the guestworkers as they argued in federal court, in Castellanos v. Decatur Hotels, that they were, in effect, excluded from the minimum wage. “The DOL’s new regulations are a vindication of our fight,” said Jose Sanchez, member and plaintiff in the litigation. “Even though the court ruled against us, these regulations can overturn the misguided court ruling. As a result, more guestworkers will be able to exercise their rights.”
Employers must guarantee workers ¾ of the hours promised in the contract on a month to month basis. The comments section of the Department of Labor quotes the expert Congressional testimony of members of the NGA to describe the problem: “Daniel Angel Castellanos Contreras, a Peruvian engineer, was promised 60 hours per week at $10-$15 per hour. According to Mr. Contreras, ‘The guarantee of 60 hours per week became an average of only 20 to 30 hours per week – sometimes less. With so little work at such low pay [$6.02 to $7. 79 per hour] it was impossible to even cover our expenses in New Orleans, let alone pay off the debt we incurred to come to work and save money to send home.’” Because workers cannot switch employers, and cannot return to debt, employers are able to hold workers even when they do not fulfill their promise of providing work. Guestworkers become a captive workforce, waiting to be put to work by employers who have a ready supply of temporary labor. This new policy would give workers a lever to fight for the employment they were promised.
The DOL is implementing real protections for U.S. workers, so that employers cannot use the H-2B program to pit guestworkers against local workers.Guestworker Miguel Angel Jovel Lopez arrived on an H-2B visa in Nashville at a time when the city was experiencing close to 10% unemployment. He recounts: “We realized we were being used. Used as cheap labor, and used to undercut the local American workers.” Again and again, the NGA’s campaigns have exposed how employers have defrauded the U.S. government in order to exclude local workers from jobs – and exploit guestworkers. The new regulations would create much-needed protections for U.S. workers to intervene in the race to the bottom.
The new regulations, if passed, would go a long way in making sure guestworkers can access their basic civil and labor rights. We urge all advocates, unions, workers’ centers, civil rights organizations and high-road employers – all those who are on the side of respect and dignity at work – to submit comments to the Department of Labor within the 60-day comment period through the regulatory commentary process supporting these new regulations.
Please follow these simple instructions for filing comments online:
The proposed regulations are available at: http://www.regulations.gov/#!documentDetail;D=ETA-2011-0001-0001
Comments can be submitted online at the below link: http://www.regulations.gov/#!submitComment;D=ETA-2011-0001-0001
The National Guestworker Alliance is anchored by the New Orleans Workers’ Center for Racial Justice. Please send copies of comments to email@example.com and contact Jacob Horwitz, Lead Organizer, National Guestworker Alliance, with any questions: (504) 452-9159, firstname.lastname@example.org