New rules protect temporary foreign workers
By Ryan Lengerich
Hundreds of temporary foreign workers in the Black Hills will have more protections from employers and recruiters under guidelines announced Friday by the U.S. Department of Labor.
Employers must also follow stricter guidelines in order to ensure qualified U.S. workers are not available for jobs first.
The H-2B nonimmigrant program allows employers to hire foreign workers, usually for less than a year, to come to the U.S. for non-agriculture jobs.
In 2010, more than 1,100 workers from different countries used the program to work in South Dakota, according to the most recent Labor Department statistics available. About 65 percent worked in the Black Hills, nearly all during the spring and summer tourist season in jobs such as hotel housekeepers, janitors and restaurant cooks.
Foreign workers rights organizations have testified before Congress that employers pay guest workers less than they would to local workers and exploit guest workers by not paying overtime, requiring excessive recruiter fees and providing poor working conditions.
In January, the Labor Department announced following an investigation that it had ordered Custer State Park Resort to pay $93,000 in back wages to 72 guest workers for unpaid overtime in 2010. The Labor Department then slapped the resort with a $65,000 fine.
Resort general manager Josh Schmaltz said in a statement at the time that the company “did not act willfully” and has appealed the fine but paid the back wages.
The Labor Department accused the resort’s recruiter of requiring impermissible payments from guest workers ranging from $530 to $1,500.
The new regulations prohibit recruiter fees and retaliation against workers who file complaints or organize. The new rules create a national registry for all H2B job postings and increases the time U.S. workers must be recruited.
Saket Soni, executive director of the rights group National Guestworker Alliance in New Orleans, praised the new regulations.
“The H2B program has been a nightmare of forced labor and debt servitude, with employers using cheap, exploitable guest workers to undercut local workers and prevailing wages,” Soni said in a statement. “These regulations will protect U.S. workers and wages by stopping employers from exploiting guest workers to undercut the local labor force.”
The new regulations take effect April 23. By then, most guest workers in the Black Hills will be working or already selected to work.
Caleb Arceneaux, chief executive officer of ISIS Hospitality, which manages Cadillac Jack’s Gaming Resort and Tin Lizzie Casino, employed guest workers in 2010. He said he did not use the program last year and will not this year because regulations since then made it cost-prohibitive.
He said South Dakota’s low unemployment rate – about 4 percent – makes hiring locally difficult.
“To a certain degree it is,” Arceneaux said. “It is work, and we pay a fair wage, so we tend to be able to recruit some. But it is difficult.”
Jim Sellars, general manager for Mount Rushmore Resorts, said despite a successful run hiring guest workers for eight years, he ended the practice after the 2011 tourist season due to increased regulations and the choice to hire more American workers. He has more than 40 jobs open for the coming season.
“We are just working on it right now. We have our ads placed and are gathering resumes,” he said. “Ideally, local workers would be the best.”