Apr. 4, 2006 – An international lawsuit filed on behalf of immigrants working legally in the United States highlights the absence of labor rights protections in current and proposed guest-worker programs.
The same protections are missing from legislation being debated in the US Senate to dramatically expand the number of temporary worker visas.
Last week, several immigrants joined a complaint filed last year alleging that the US government is violating worker protections established under the North American Free Trade Agreement (NAFTA). The plaintiffs â€“ Edgar PeÃ±a, Guillermo Orozco, Anastacio Valdez and Rosa Hernandez â€“ came to the US to work in a corn-packing plant under H-2B visas, which authorize temporary work in certain sectors.
They allege that their employer, Mountain Fresh Corn, promised hourly wages of $6.26, free housing and consistent work, but that when they arrived, they worked very few hours at wages below the federal minimum wage, which is $5.15 an hour. They also say, according to the complaint filed on their behalf, that when they sought legal advice, the company retaliated against them by terminating their contract.
Mountain Fresh Corn spokesperson Bill Frye denied the company violates workersâ€™ rights. "We treat our people fairly and follow all the rules," he said in an interview with the Miami Herald last week. "Our employees are generally satisfied and come back year after year."
Rights groups fear that, without strong worker safeguards in place, the program could merely legitimize abusive labor contracts.
The four new plaintiffs joined sixteen other H-2B visa-holders who filed similar charges against other employers in 2005.
The case mainly turns on a NAFTA side agreement called the North American Agreement on Labor Cooperation, which mandates that the US give migrant workers access to the procedures for enforcing labor laws.
But according to the plaintiffsâ€™ attorneys, "immigrant workers in the United States suffer serious and frequent violations of their labor rights, and the United States fails to afford immigrant workers an appropriate ability to enforce their labor rights." A major barrier to court access, write the attorneys, is that legal aid services that receive federal funding through the federally chartered Legal Services Corporation (LSC) cannot represent H-2B visa holders. Without the help of LSC-funded firms, it is extremely difficult for guest workers to retain counsel.
In detailing the efforts of PeÃ±a, Orozco, Valdez and Hernandez to find representation, the complaint says that after finding no legal services program that does not receive federal funding, the workers spent months searching for a private lawyer to take the case pro bono. It was only after most workers had left the Colorado worksite that they found an attorney who might represent them. "However," reads the complaint, "the attorney is now at a significant disadvantage in representing these clients, as he is not as familiar with the facts, the witnesses have left the country, and he is not a specialist in agricultural labor law.
While the Mexican government considers the case, Washington lawmakers are debating a proposal to greatly expand the number of temporary guest workers employed in the United States.
Originally proposed by Senators John McCain (R-Arizona) and Edward Kennedy (D-Massachusetts), the current incarnation of the temporary guest-worker provision was folded into a bill passed last Monday by the Senate Judiciary Committee. The bill, now under consideration by the full Senate, would create a new type of temporary worker visa called H-2C.
Some immigrantsâ€™ rights groups, while welcoming the possibility of increased opportunities for legal work in the US, have criticized the McCain-Kennedy proposal for being soft on the same labor protections at the center of the the NAFTA complaint. They fear that without strong worker safeguards in place, the program could merely legitimize abusive labor contracts.
While H-2C workers would have some more freedoms than their H-2B-holding counterparts â€“ for instance, they would be able to leave their original employer to seek other work â€“ the bill does not change the prohibition against legal-aid service providers offering them help.
In a July 2005 analysis of the McCain-Kennedy proposal, the National Immigration Law Center (NILC) noted that the "basic worker protections the bill intends to provide are severely undermined by its lack of stronger provisions to enforce the protections." Specifically, workers will have to prove that labor-law violations occurred before triggering an investigation of their allegations by the Labor Department.
"The lack of enforcement mechanisms in the bill places the worker at a serious disadvantage," wrote the NILC, "especially since the bill does not provideâ€¦ workers access to Legal Aid lawyers funded by the Legal Services Corporation, who would often be the only attorneys available to assist workers with such claims."
A NewStandard analysis of the Judiciary Committeeâ€™s revision of the McCain-Kennedy language uncovered no new protections addressing concerns raised by the NILC.