Migrant workers around the world are in garment factories sewing clothing to be sold in stores around the world. They are behind the scenes of hotels and financial conference centers in Dubai. They are construction workers in Qatar, building the 2022 World Cup facilities. On boats in seas across Southeast Asia, they are supplying our markets with fish. They are domestic workers who leave their homes and families for the households of employers across Europe. These are the migrant workers of the world.
You see their faces in fields across
America; bandanas and hats shield them from the hot sun as they harvest vegetables
and fruits to fill grocery stores and feed the American population. They are
changing the sheets in hotel rooms, bussing tables and cooking in restaurants.
They are camp counselors, and nannies pushing children in strollers through the
park. They are selling wristbands and operating carnival rides. They are computer
programmers filling the offices of Silicon Valley. These are the migrant
workers of America.
A dearth of economic opportunity in their home
countries drives migrant workers abroad in search of work. While some migrant
workers are able to earn a livable wage, the majority of migrant workers experience
something vastly different. The U.S. Department of State has cataloged the
exploitation of migrant workers worldwide as “forced labor” and “a form of
modern day slavery” in the 2012 Trafficking in Person’s Report.[1]
As many reports have documented, migrant workers are utilized as a cheap and
exploitable workforce.[2]
Forced labor “…encompasses the range of activities – recruiting, harboring,
transporting, providing, or obtaining – involved when a person uses force or
physical threats, psychological coercion, abuse of the legal process, deception or other coercive means to
compel someone to work…”[3]
Currently, the U.S. has sixteen temporary visa
work or “guestworker” programs[4],
which are overseen by the Departments of Labor, Homeland Security, and State. In
the summer of 2012, I conducted a detailed study of the U.S. temporary worker
programs. I found that these work visa programs form an intricate web of U.S.
labor law, administrative law, and immigration law. What I discovered in
researching the temporary work programs was appalling. The forced labor endured
by migrant workers has been recently characterized as a form of modern day
slavery.[5]
The
most prominent temporary work visa program is the H-2 temporary foreign worker
program, a result of the Immigration and Nationality Act (INA)
of 1952.[6] The H-2 program
encompasses both the H-2A and the H-2B temporary work visa programs. The H-2A work visa program is for
seasonal agricultural work and [7]H-2A visas are
usually valid for less than one year, and can be extended for up to 12 months.[8]
U.S. Citizenship and Immigration Services usually does not authorize an
H-2B visa for longer than one year, with the possibility of one-year
extensions.[9]
In 2012, the Department of Labor
certified 62,743 H-2A positions and 63,724 H-2B positions.[10]
The top five H-2A positions were for work with Valencia Orange crops, in farm
worker positions, peach crops, tobacco crops, and lettuce crops.[11]
The top five positions certified for H-2B workers were for positions as a laborer
or landscaper, forest worker, amusement park worker, cleaner, housekeeper, and
industrial or commercial groundskeeper.[12]
Migrant workers search for work outside
of their country of origin and recruiters and agents operating in the workers’
home countries waste no effort in manipulating and capitalizing on their desperation.
Recruiters deceive workers into thinking that they must pay fees directly to
the recruiter in order to secure work in the U.S.; this is a purely fraudulent
practice.[13]
Recruiters prey on foreign workers desperate for work and income by charging
the workers manifestly excessive fees. These exorbitant fees include inflated costs,
causing workers to arrive in the U.S. deeply in debt. It is not uncommon for
workers to mortgage their property and homes in order to pay these fraudulent
fees. Yet, in fact, recruiter fees are banned under U.S. regulations. U.S.
government agencies maintain fixed rates for visa application fees. Unfortunately,
it is nearly impossible for the U.S. federal agencies to monitor the activities
of foreign recruiters, because the abuse is so widespread. Moreover, the fact
that recruiters operate abroad seriously impedes the ability of U.S. monitors
to enforce the regulations. The exploitation of vulnerable migrant workers has
become a profitable engagement:
Given the paucity of effective
international norms on labor migration, the exploitation of workers is growing
at an alarming rate. Recruiters, labor brokers, sponsors, and employers have
found that they can abuse migrants. With little risks and huge financial
rewards, labor recruitment fraud often earns a guilty party little more than a
fine (in the few countries that criminalize it). The practice of deceiving
migrants into traveling abroad for work – including the prevalent requirement
of large recruitment fees – is a high-profit form of exploitation in many major
labor sending countries. In its 2009 study titled Cost of Coercion, the [International
Labor Organization] estimated that up to $20 billion can be extorted annually
from these workers worldwide.[14]
The exploitation does not end with
the visa application and entry process. The
flaws in the visa programs are exascerbated by the fact that once workers are
in the U.S., they are bound to maintain exclusive employment with the employer listed in their visa application and
registered with the U.S. federal agencies. To the worker’s detriment, the visa
does not operate as a general license to seek U.S. employment. Even if they are
experiencing exploitation or abuse, under the H-2A and H-2B programs migrant
workers are not able to change jobs to work for new employers. As a result, unscrupulous
employers take advantage of the legal and financial dependence of migrant
workers. After workers have acquired such high debt during the entry process,
they rely heavily on the opportunity to make U.S. wages that can only be
provided by their listed employer.
The most common form of exploitation
is in labor and wages. Often migrant workers are forced to work long hours and are
paid unreasonably low wages, usually less than minimum wage, in violation of
the program’s rules.[15]
This is due not only to flaws in the program regulations, but is attributable
to a lack of enforcement as well. When it comes to protections for workers the
mandates on paper are not typically adhered to in practice.[16]
Regulations require that H-2A workers must be paid at least the highest of the
following: the adverse effect wage rate (AEWR); the prevailing wage; the
prevailing piece rate; the agreed-upon collective bargaining wage; or the
federal or state minimum wage.[17]
H-2B employers must pay throughout the approved employment period a wage that
is equal to or is above the highest wage out of the prevailing wage, applicable
federal minimum wage, or the state minimum wage.[18]
Wages cannot be based on commissions, bonuses, or other incentives unless the
worker is guaranteed to receive a regularly paid wage that equals or is above
the prevailing wage, the federal minimum wage, or the state or local minimum
wage.[19]
While these guarantees seemingly ensure an equitable exchange of labor for wages,
the practical reality is less than convincing. The 2012 Trafficking in Persons
Report prepared by the U.S. Department of State describes the situation common
to many migrant workers.
For a Guatemalan, the cost of a job could include becoming an undocumented worker in the United
States when he or she is forced by
traffickers to perform labor that is not covered by the visa provided by
his or her labor broker. He or she would then have to repay
the broker and travel fees, all while working nearly 80 hours a week for
less than minimum wage.[20]
In addition to the abuse resulting
from the meager pay and long hours, there have been reports of women suffering rape
and sexual abuse at the hands of their employers.[21]
If workers speak out or complain about the abuse, they risk deportation,
blacklisting, and retaliation by employers. Again, recruiters deprive workers of their rights
by manipulating workers’ understandings of their available protections pursuant
to U.S. law. According to the
Department of State’s 2011 Trafficking in Persons Report:
Recruiters
discouraged former workers from reporting labor violations, claiming that U.S. embassies or consulates
would not grant future visas for those
who complain –assertions that are false and contrary to U.S. law. Workers also feared seeking
assistance because of blacklisting and other retaliation against workers who complain about their conditions. [22]
These common abuses continue to
occur because of the looming threat of deportation that holds the workers under
their employer’s thumb. Because workers are licensed only to work for the
particular employer in their visa application, once an employer fires the
worker and informs government agencies that the worker has violated their visa
contract, the worker becomes eligible for deportation.[23]
In addition to the financial and
legal dependence that migrant workers are confronted with when coming to the
U.S. on an H-2A or H-2B visa, the abuse takes many forms such as: a lack of
medical treatment, discrimination, degradation, poor housing facilities, and
purposeful isolation. The combined effect of the threat of deportation and
legal and financial dependence on their employers prevents migrant workers from
turning to law enforcement for help. Community service and non-profit programs exist,
but it is difficult to inform migrant workers of the assistance available. Abusive
employers work hard to keep their migrant workers isolated and afraid of both law
enforcement and outside organizations. Any migrant worker lucky enough to learn
of the assistance available and who is not restrained by fear, often has to
seek help secretively.
Legal remedies do exist for migrant
workers in the U.S., but they vary from program to program. Migrant workers are
largely dependent on the government to enforce their rights. For instance,
agricultural workers under the H-2A program are not covered by the Migrant and
Seasonal Agricultural Protection Act (MSPA), but are protected by the Fair Labor Standards Act (FLSA),
enforced by the U.S. Department of Labor, and the Immigration and Nationality
Act.[24] Additionally,
although agricultural work is routinely documented as among the most dangerous
jobs in the U.S., many farms are exempt from Occupational Safety and Health
Administration inspections.[25]
H-2B program workers are covered by the Fair Labor Standards Act.[26]
Unlike H-2A workers, H-2B workers are not
permitted to access federally funded legal services.[27]
With limited financial resources, they are restricted to obtaining either private
pro bono legal assistance or dependent upon non-profit legal service providers.[28]
While several cases, especially class actions, have been successfully
litigated, migrant workers face many barriers in utilizing the judicial system
to enforce their rights.[29]
More often than not, before a case can be brought, the migrant worker’s visa
has expired and they must return to their home country. Luckily, non-profit
legal service providers have found ways to overcome this challenge with
transnational litigation techniques in which U.S. attorneys work with migrant
workers via the internet, teleconferencing, email, and video depositions to
facilitate legal claims.
Although not all employers exploit migrant
workers, the occurrences of exploitation are too widespread to be deemed
incidental. While the U.S. temporary foreign work programs provide foreign
workers with an income unavailable in their home countries, they should not act
to facilitate the human rights abuses and labor law violations. In 2012, the U.S.
Departments of Labor, State, and Homeland Security recognized the need to
tighten the program regulations and step up enforcement.[30]
The U.S. Government’s recognition of the need for increased regulation and change begs the question of whether the International Convention on Migrant Workers might be a good steering mechanism to eradicate modern day slavery and forced labor in our economy. The Preamble of the Convention on Migrant Workers identifies the gravity of the issues faced by migrant workers and the importance of internationally recognized principles in this area.
…Aware of the impact of the flows
of migrant workers on States and people concerned, and desiring to establish
norms which may contribute to the harmonization of the attitudes of States
through the acceptance of basic principles concerning the treatment of migrant
workers and members of their families…Considering the situation of
vulnerability in which migrant workers and members of their families
frequently-find themselves owing, among other things, to their absence from
their State of origin and to the difficulties they may encounter arising from
their presence in the State of employment, Convinced that the rights of migrant
workers and members of their families have not been sufficiently recognized
everywhere and therefore require appropriate international protection…
Convinced, therefore, of the need to bring about the international protection
of the rights of all migrant workers and members of their families, reaffirming
and establishing basic norms in a comprehensive convention which could be
applied universally…[31]
The International Convention on Migrant Workers provides the safeguards necessary to prevent the continued exploitation of migrant workers and ratifying the convention would be a suitable beginning for the U.S. in addressing the human rights violations occurring under its own temporary work programs. Recent news developments regarding abuses occurring on U.S. soil and committed by U.S. businesses overseas have further illustrated that it is imperative that the U.S. join the international community’s effort to protect migrant workers.[32]
[1] U.S.
Dep’t of State, Trafficking in Persons Report, at 1 (2012), available at
http://www.state.gov/documents/organization/192587.pdf.
[2] See
generally U.S. Dep’t of State,
Trafficking in Persons Report, (2012), available at http://www.state.gov/documents/organization/192587.pdf;
Mary Bauer, Southern Poverty Law Center,
Close to Slavery: Guestworker Programs in the United States (2007),
available at http://cdna.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf.
[3] U.S.
Dep’t of State, Trafficking in Persons Report, at 33 (2012), available
at http://www.state.gov/documents/organization/192587.pdf.
[4] For a description of each program see U.S.
Dep’t of State, Temporary Workers, http://travel.state.gov/visa/temp/types/types_1275.html.
[5] U.S.
Dep’t of State, Trafficking in Persons Report, at 13 (2012), available
at http://www.state.gov/documents/organization/192587.pdf (“The
old way of slavery was that the boss really owned you…But now legal recruiters
and employers work in tandem to deceive workers who, vulnerable and isolated in
a strange culture, are forced to accept harsh terms. It is in that context that
you have endemic forced labor today.”).
[7] U.S.
Dep’t of Labor, Employment and Training Administration, Foreign Labor
Certification, H -2B Certification for Temporary Non-Agricultural Work, (June
2012), http://www.foreignlaborcert.doleta.gov/h-2b.cfm.
[8] U.S.
Dep’t Homeland Security, U.S. Citizenship and Immigration Services, H-2A
Temporary Agricultural Workers, (January 17, 2012), http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=889f0b89284a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=889f0b89284a3210VgnVCM100000b92ca60aRCRD.
[9] 8 C.F.R. §214.2(h)(6)(ii)(B)(2012).
[10] U.S.
Dep’t of Labor, Employment and Training Administration, Office of Foreign Labor
Certification, H-2A Temporary Agricultural Visa Program- Selected Statistics, FY 2012 YTD, http://www.foreignlaborcert.doleta.gov/pdf/h_2a_select_statis_oct2011_may_2012.pdf
(last visited Nov. 9, 2012); U.S. Dep’t
of Labor, Employment and Training Administration, Office of Foreign Labor
Certification, H-2B Temporary Non-Agricultural Visa Program- Selected
Statistics, FY 2012 YTD, http://www.foreignlaborcert.doleta.gov/pdf/h_2b_temp_non_agricultural_visa.pdf (last visited Nov. 9, 2012).
[11] U.S. Dep’t of Labor,
Employment and Training Administration, Office of Foreign Labor Certification, H-2A Temporary Agricultural Visa
Program- Selected Statistics, FY 2012 YTD, http://www.foreignlaborcert.doleta.gov/pdf/h_2a_select_statis_oct2011_may_2012.pdf
(last visited Nov. 9, 2012).
[12] U.S.
Dep’t of Labor, Employment and Training Administration, Office of Foreign Labor
Certification, H-2B Temporary
Non-Agricultural Visa Program-Selected Statistics, FY 2012 YTD, http://www.foreignlaborcert.doleta.gov/pdf/h_2b_temp_non_agricultural_visa.pdf
(last visited Nov. 9, 2012).
[13] 20
C.F.R. § 655.15(a)(2012) (H-2B) (explaining that employers must file
applications for foreign workers directly to the government agencies); and 20 C.F.R. § 655.130(a)(2012) (H-2A)
(explaining that employers must file applications for foreign workers directly
to the government agencies).
[14]
U.S. Dep’t of State, Trafficking in
Persons Report, at 23 (2012), available at http://www.state.gov/documents/organization/192587.pdf.
[15] Mary
Bauer, Southern Poverty Law Center, Close to Slavery: Guestworker Programs in
the United States 18 (2007), available at http://cdna.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf.
[16] See
generally Michael P. Tremoglie, OSHA Cites La. company for safety and wage
violations, Legal Newsline,
July 26, 2012, http://www.legalnewsline.com/news/236843-osha-cites-la.-company-for-safety-and-wage-violations.
[17] U.S.
Dep’t of Labor, Adverse Effect Wages - Year 2012, (last visited Nov. 9,
2012) http://www.foreignlaborcert.doleta.gov/adverse.cfm.
[18] 20 C.F.R. § 655.22(e)(2011).
[19] 20 C.F.R § 655.22(g)(1)(2011).
[20]
U.S.
Dep’t of State, Trafficking in Persons Report, at 11 (2012), available at
http://www.state.gov/documents/organization/192587.pdf.
[21] See
generally Human Rights Watch, Cultivating
Fear: The Vulnerability of Immigrant
Farmworkers in the US to Sexual Violence and Sexual Harassment (May
16, 2012), http://www.hrw.org/reports/2012/05/16/cultivating-fear-0.
[22]
U.S. Dep’t of State, Trafficking in Persons Report, at
378 (2011), available at http://www.state.gov/documents/organization/164458.pdf.
[23] Mary
Bauer, Southern Poverty Law Center, Close to Slavery: Guestworker Programs in
the United States 15 (2007), available at http://cdna.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf.
[24] U.S. Dep’t of Labor, A Summary of the Major Laws of the Department of
Labor, http://www.dol.gov/opa/aboutdol/lawsprog.htm#migrant (last visited Nov. 9, 2012); U.S. Dep’t
of Labor, Employment Law Guide, Work Authorization for Non-U.S. Citizens:
Temporary Agricultural Workers (H-2A Visas), (Sept. 2009), http://www.dol.gov/compliance/guide/taw.htm.
[25]
U.S. Dep’t of Labor, Employment Law Guide, Work Authorization for
Non-U.S. Citizens: Temporary Agricultural Workers (H-2A Visas), (Sept. 2009),
http://www.dol.gov/compliance/guide/taw.htm;
Internal
Revenue Services, Foreign Agricultural Workers, (August 2,
2012), http://www.irs.gov/businesses/small/international/article/0,,id=96422,00.html.
[26]
U.S. Dep’t of Labor, Employment Law Guide, Work Authorization for
Non-U.S. Citizens: Temporary Nonagricultural Workers (H-2B Visas), (Sept. 2009), http://www.dol.gov/compliance/guide/tnw.htm#EmplRights.
[27] Mary
Bauer, Southern Poverty Law Center, Close to Slavery: Guestworker Programs in
the United States 28 (2007), available at http://cdna.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf.
[29] See generally Arriaga v. Florida Pacific
Farms, LLP, 305 F.3d 1228, 1241-45
(11th Cir. 2002); James Gilbert, Migrant Workers Settle Lawsuit Against
Monsanto, Yuma Sun, June 6, 2011, http://www.yumasun.com/articles/workers-70515-monsanto-lawsuit.html.
[30] For recent developments in new H-2B
regulations see U.S. Dep’t of Labor, Wage and Hour Division,
WHD Side-By-Side Comparison of the 2009 and 2012 Rules, (Feb. 2012), http://www.dol.gov/whd/immigration/H2BFinalRule/H2BSideBySide.htm; for examples of regulation enforcement see Michael P. Tremoglie, OSHA Cites La. Company for Safety and Wage Violations, Legal Newsline, July 26, 2012, http://www.legalnewsline.com/news/236843-osha-cites-la.-company-for-safety-and-wage-violations.
[31] International
Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families, G.A. Res. 45/158, U.N. Doc.
A/RES/45/158 (Dec. 18, 1990).
[32] See
generally Charles Kernaghan,
Institute for Global Labour and Human Rights, Sexual Predators and Serial
Rapists Run Wild at Wal-Mart Supplier in Jordan, (2007) http://www.globallabourrights.org/admin/reports/files/Content-Classic-0607-final.pdf; David Barboza and Charles Duhigg, China Contractor Again Faces Labor Issue on
iPhones, N.Y. Times, Sept. 10, 2012, http://www.nytimes.com/2012/09/11/technology/foxconn-said-to-use-forced-student-labor-to-make-iphones.html?pagewanted=all&_r=0; Mark Fainaru-Wada and Justine Gubar, The Unseen Faces of Sports Apparel,
ESPN, Jan. 9, 2012, http://espn.go.com/espn/otl/story/_/id/7435424/dallas-cowboys-dip-sports-apparel-business-comes-allegations-sweatshop-labor.
