In an otherwise grim period for the U.S. labor movement, the fast food industry has been a hot spot for organizing activity. For the past four years, the union-backed Fight for 15 movement and allied groups have staged a series of nationwide, day-long strikes and protests in support of higher wages and unionization for fast food workers.
Fast food workers have yet to gain any significant union representation. But thanks in large part to the movement’s efforts, states and cities across the country have passed minimum wage laws raising pay for millions of people.
And now, if President-elect Donald Trump has his way, an enemy of the Fight for $15 movement will lead the U.S. Labor Department.
On Thursday, Trump revealed that he had nominated Andrew Puzder, CEO of CKE Restaurants, to be Labor Secretary. CKE Restaurants is the parent company of Hardee’s and Carl’s Jr., two fast food companies that have been targeted by Fight for 15. Puzder himself is on record as an opponent of raising the minimum wage, and has said that he would like to try automating service more service jobs in response to wage hikes.
Unsurprisingly, the fast food lobby was delighted with Trump’s decision to elevate Puzder. International Franchise Association President and CEO Robert Cresanti called Puzder “an exceptional choice to lead the Labor Department” in a statement responding to the news.
Cresanti also offered up a wishlist for Puzder’s early days in office. The Obama Labor Department issue a rule (currently held up in federal court) that would dramatically expand the number of workers eligible for overtime pay. The department has also fought to expand joint-employer liability, meaning that multinational corporations such as McDonald’s may be held legally accountable for labor law violations committed at their franchised locations.
“We are hopeful that, if confirmed by the Senate, a top priority [for Puzder] will be rolling back the damaging effects caused by the expansion of joint employer liability to America’s 733,000 franchise businesses, and the too-far, too-fast increase in the overtime threshold that was recently put on hold by a Texas judge,” said Cresanti.
The progressive National Employment Law Project, on the other hand, described Puzder’s nomination as a “sucker-punch in the gut to all the men and women of good faith who believe in the mission of the U.S. Labor Department.”
“The job of the labor secretary is NOT to strengthen the power of corporations to reap record profits by squeezing every last drop out of their low-wage workforce—and threatening to replace them with machines if they ask for wages they can support their families on,” said NELP Executive Director Christine Owens. “While Mr. Puzder’s qualifications may fit the bill for the latter, those qualifications are anathema to what a secretary of labor should stand for.”
As Labor Secretary, Puzder would head up the main government agency charged with investigating claims of wage theft. A 2016 Bloomberg analysis of Labor Department data found that Hardee’s and Carl’s Jr. restaurants were themselves frequent violators of the law.
That may be why Fight for 15 organizing director told the American Prospect two weeks ago that appointing Puzder as Labor Secretary would be “like putting Bernie Madoff in charge of the treasury.”
This blog originally appeared in ThinkProgress.org on December 8, 2016. Reprinted with permission.
Ned Resnikoff is a senior editor at @thinkprogress.He was previously a reporter for for International Business Times, Al Jazeera America, and msnbc. Follow him on twitter @resnikoff.
President Obama’s expansion of overtime pay goes into effect on December 1. But what happens if it gets rolled back in 2017? Here are some of the Department of Labor’s takeaways from a Congressional Budget Office report:
CBO finds that reversing the rule would strip nearly 4 million workers of overtime protections. According to the report, there are nearly 4 million workers whose employers will be required to pay them overtime when they work more than 40 hours a week when the rule goes into effect.
CBO finds that reversing the rule would reduce workers’ earnings while increasing the hours they work. The report finds that if the rule is reversed, the total annual earnings of all affected workers would decrease by more than $500 million in 2017. Further, these workers would earn less money while working more hours.
At a time when income inequality is already of great concern, CBO finds that reversing the rule would primarily benefit people with high incomes. If the rule were reversed, affected workers, most of whom have moderate incomes, would experience a loss in earnings. These losses would be accompanied by an increase in firms’ profits, of which the vast majority (CBO estimates 85 percent) would accrue to people in the top income quintile.
CBO finds that reversing the rule would not create or save jobs. The report finds no significant impact on the number of jobs in the economy.
Nearly 4 million workers.
This article originally appeared at DailyKOS.com on November 19, 2016. Reprinted with permission.
Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.
In 63 days, organized labor is going to find itself in a new political reality, which it seems totally unprepared for. Donald Trump will be president; the Republicans will control the House and Senate and one of Trump’s first tasks will be to nominate a new Supreme Court justice. Though Trump was tight-lipped about specific policy proposals, his campaign and the current constitution of the Republican party do not bode well for labor.
Trump’s actions will largely fall into one of four categories: judicial, legislative, executive and at the level of federal agencies. Each potential move will take various levels of cooperation from other branches of government and varying amounts of time to complete.
On Day 1 of his new administration, President Trump can simply rescind many of Barack Obama’s executive orders that benefited large groups of workers. Chief among these were EO 13673, which required prospective federal contractors to disclose violations of state and federal labor laws, and helped protect employees of contractors from wage theft and mandatory arbitration of a variety of employment claims. Similarly, EO 13494 made contractor expenses associated with union busting non-allowable, thereby helping to ensure that workers can exercise their labor rights.
At the agency level, Trump will have the opportunity to fill vacancies on the five-person National Labor Relations Board (NLRB), effectively turning what has been one of the most pro-worker boards in recent memory into one that is more concerned with employers’ interests. The NLRB is one of the more politicized federal agencies, and it is not uncommon for a new NLRB to overturn a previous board’s rulings. A conservative board would put into jeopardy recent gains, including the requirement of joint employers to bargain with workers, the rights of graduate students to form unions, the rights of adjuncts at religious colleges to form unions and the protections from class action waivers in employment arbitration agreements, which effectively block access to justice for too many.
Similarly, Trump can immediately dismiss the entire Federal Service Impasses Panel (FSIP) and appoint his own members. The FSIP is a little-known federal agency that functions like a mini-NLRB to resolve disputes between unionized federal employees and the government.
Donald Trump may be able to not only roll back many of Barack Obama’s accomplishments, but also change the face of labor law for decades to come. (AFL-CIO/ Facebook)
At the legislative level, various anti-worker bills sit ready for a GOP-led push. Perhaps chief among them is the National Right to Work Act, which would place every private sector employee (including airline and railway employees currently under the Railway Labor Act) under right-to-work. Right-to-work is the misleading law that prohibits unions from requiring that workers represented by the union pay their fair share. Such a bill was introduced last year by Sen. Rand Paul, and it had 29 co-sponsors, including Senate Majority Leader Mitch McConnell. Trump announced on the campaign trail that his “position on right-to-work is 100 percent,” so this will likely be an area where he has common cause with the GOP-controlled Congress.
At the judicial level, there is also a strong possibility that we will see a sequel to the Friedrichs case at the Supreme Court. Friedrichs was widely anticipated to bar fair share fees and place all public sector employees under right-to-work, but ended in a deadlock after Justice Antonin Scalia’s death. It is likely that any Supreme Court justice that Trump chooses will be as critical of fair share fees as Justices Samuel Alito and John Roberts, and would provide a critical fifth vote in changing long-standing precedent regarding the allowance of such fees. Groups like the National Right to Work Committee and Center for Individual Rights often have cases in the pipeline that could be pushed to the Supreme Court when the opportunity arises.
Similarly, at the judicial level, Trump will likely have his Department of Labor drop appeals to court decisions that enjoined or overturned pro-worker rules, such as the rule requiring union-busters to disclose when they are involved in an organizing campaign. Dropping the appeals would be an easy route to kill the rules, rather than going through a more time consuming rulemaking process to rescind them.
All indications are that labor has been caught unprepared for a President Trump and a GOP-controlled Congress and Supreme Court. With such broad control over every branch of government, Trump may be able to not only roll back many of Obama’s accomplishments, but also change the face of labor law for decades to come.
This post originally appeared on inthesetimes.com on November 17, 2016. Reprinted with permission.
The Department of Labor (DOL) has finalized rules that require financial advisers who help people make investments for retirement to put their clients’ interests ahead of their own. But House Republicans aren’t letting the rule go into effect without a fight.
On Thursday, the House voted on a resolution that would effectively block the new rules, which require advisers to adhere to a “fiduciary standard,” that passed along strict party lines, with 234 Republicans voting yes and 183 Democrats voting no. Republicans claim that the rule will make investment advice more expensive, with Rep. Phil Roe (R-TN), a sponsor of the legislation, saying it would “protect access to affordable retirement advice.” They’ve also characterized the rules as government overreach, with House Speaker Paul Ryan (R-WI) calling them “Obamacare for financial planning.”
Their position mirrors that of the financial industry, which has fought the rules with claims about the impact they could have on their businesses that Sen. Elizabeth Warren (D-MA) has questioned as being disingenuous. Ahead of the House vote on the resolution, eight big financial industry trade groups sent a letter to lawmakers urging them to vote in favor of the resolution.
The vote, however, is a largely symbolic move. For the resolution to have any power, it would have to be taken up and passed by the Senate, and President Obama would have to sign it. But he’s already threatened to veto the measure. DOL Secretary Thomas Perez called Thursday’s vote “a waste of time.”
Before the new standard, advisers were only required to give “suitable” advice, which left the door open for them to steer clients into products that made the advisers more money but weren’t the best option. That practice was costing Americans an estimated$17 billion a year in conflicted advice, according to the White House. Some people say their finances, particularly their chances of retiring comfortably, have been destroyed by bad advice and that they would have simply been better off without it.
Americans have little wiggle room for losing money when it comes to saving enough for retirement. Pensions, which guarantee payments in old age, have beenoverwhelmingly replaced with 401(k)s, which require individual workers to make smart investment choices in order to have enough to live off of when they stop working. And by and large workers aren’t putting enough aside. The gap between what they should have saved up and what they’ve actually put away is $6.6 trillion. Meanwhile, about 60 percent of working age people have no retirement savings at all.
This blog originally appeared on Thinkprogress.org on April 29, 2016. Reprinted with permission.
Bryce Covert Bryce Covert is the Economic Policy Editor for ThinkProgress. Her writing has appeared in the New York Times, The New York Daily News, New York Magazine, Slate, The New Republic, and others. She has appeared on ABC, CBS, MSNBC, and other outlets.
An anti-union video so painfully corny, you probably had to turn it off after a few seconds.
Anti-union videos—like this one from Target—fliers and other materials are the bread and butter of consulting firms who specialize in “union avoidance.” A nefarious industry that steps in for employers and attempts to squelch working people’s right to a union voice on the job.
Making these union busters more transparent is only fair. While unions are required to file lengthy annual LM-2 financial disclosure reports that detail all receipts and expenditures, the LM-20 form that management consultants will be required to file is two pages, much of which simply requires checking boxes.
Mike Lo Vuolo, a former American Airlines passenger agent, and his co-workers tried three times to form a union at American Airlines with the Communications Workers of America (CWA), under the company’s previous management. In 2012, despite having filed for bankruptcy, American Airlines spent hundreds of thousands of dollars on the law firm Sheppard Mullin. Mike recalls high-gloss fliers, video cassettes and DVDs used to discourage and scare employees during organizing drives.
AFL-CIO President Richard Trumka weighed in on the new rule:
It takes great courage for working people to come together to form a union. Working men and women deserve to know who their employer is hiring and exactly how much they are spending to discourage workers from forming a union.
This blog originally appeared at aflcio.org on March 23, 2016. Reprinted with permission.
Jackie Tortora is the blog editor and social media manager at AFL-CIO.
Businesses don’t just use temp staffing agencies to add workers for short periods when they need extra hands. Staffing agencies can also serve the valuable (to crappy employers) purpose of dodging responsibility. “That person may work in our business on our terms, but the staffing agency is their employer, so we’re not responsible for violating labor laws to exploit them,” is how the dodge basically goes. Now, the Department of Labor is taking steps against that, issuing guidelines on when the company using the staffing agency to hire temp workers should be considered a joint employer that’s responsible for the people working in its facilities.
“I think the majority of noncompliance that we see is people just not getting what the law is, and what their responsibilities are under it,” [Department of Labor Wage and Hour Division director David] Weil said in an interview. “We also find cases of people who are clearly playing games, and clearly trying to shift out responsibility, and often have structured things in a way that lead towards more noncompliance.”
Weil’s division has stepped up its proactive enforcement of situations where companies are functionally controlling the workers they order up from labor providers — and broadcasts its enforcement of egregious violations. Back in October, for example, investigators found that temp workers at a snack food producer in New Jersey were cheated out of overtime wages, and ordered the company to pay back wages, damages, and civil penalties.
That’s the most typical form of joint employment — a “vertical” arrangement, with one company hiring another, as the guidance describes. But joint employment can also be “horizontal,” when a worker might employed by two subsidiaries of the same company, but they never get overtime because their hours are tracked separately.
Business groups and congressional Republicans are predictably pissed that the Obama administration would have the nerve to suggest that employers follow the law, with House Republicans pointing out that the Department of Labor talked to the National Labor Relations Board, which is also cracking down on joint employer issues.
Low-road businesses have found a lot of ways around laws protecting workers, from these joint employer dodges to misclassifying workers as independent contractors to deny them minimum wage and overtime protections, unemployment insurance, and more. And every time the Obama administration cracks down, it’s a reminder of what’s at stake this November. The next president won’t just argue with Congress or even appoint Supreme Court justices. The next president will make the appointments that determine whether the Department of Labor is trying to make sure workers get paid for the hours they work or is looking for ways to let bad bosses off the hook.
This blog originally appeared in dailykos.com on January 20, 2016. Reprinted with permission.
Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.
Recently, the Department of Labor proposed a rule to bring overtime up-to-date. If the proposal goes into effect, an additional 5 million white-collar workers are expected to benefit from overtime. The Department of Labor wants to hear your voice on this proposal and until this Friday, September 4, 2015,they are taking comments on the proposed rule.
Whether a worker receives overtime or not is determined by a three-part test. Under this test, the employee does not receive overtime when:
they are paid a fixed salary;
their salary is at least $455 a week (which equates to $23,660 a year); and
their job primarily involves executive, administrative, or professional duties.
Furthermore, there are exemptions for highly compensated employees who regularly perform executive, administrative, or professional duties and make at least $100,000 a year, including at least $455 a week via salary or fees.
The Department of Labor’s proposal would focus on the salary aspect of the three-part test. Instead of a stagnant number, the salary standard would be set at the 40th percentile of weekly earnings for full-time salaried workers, which is expected to be about $970 a week, $50,440 a year, in 2016. For highly compensated employees, the standard would be set at the 90th percentile, expected to be $122,148 annually.
These days, the few that do fall under the salary threshold for overtime likely fall under another threshold, the poverty line. The poverty line for a family of four is $24,008 a year, or $348 more than the overtime threshold. This means that, a worker making $460 a week could work 50 hours every week, receive no overtime pay, and be below the poverty line.
The Department of Labor’s proposal can still change and they want to hear from you on a wide variety of issues. The agency wants your opinion on the proposal to use the 40th and 90th percentiles, or switch to using changes in inflation to determine the salary threshold. They want to know whether the three-part test is working. First and foremost, they want to know what overtime pay would mean to you and your family.
Make your voice heard and make it clear that this is an important issue that has been ignored for far too long. Share your ideas on the proposal here and your story here. You only have until Friday, but please, don’t make the comments too long they would have to work overtime to read them all, and chances are they don’t get paid for that.
About the Author: The author’s name is Erik Idoni. Erik Idoni is a student at the George Mason University School of Law and an intern at Workplace Fairness.
It seems like a simple question that must have a simple answer for most people. But definitions in different laws and rulings enforcing the laws vary. And that variation provides an opening for a growing number of employers to cheat governments of taxes and workers of income, benefits and protections by misclassifying their employees, especially as “independent contractors.”
Last week, the administrator of the Department of Labor’s Wage and Hour Division, David Weil, released a “letter of guidance” that clarifies who is an employee and who is an “independent contractor”—that is, essentially an individual running his or her own business. He argues that the most definitive statement from Congress comes from the Fair Labor Standards Act, which says that “to employ” means “to suffer or permit to work.” And, he concludes, “under the Act, most workers are employees.”
The decision is “incredibly important,” says Catherine Ruckelshaus, general counsel and program director of the National Employment Law Project (NELP), a pro-worker nonprofit organization, and may help to clear up confusion in the courts and encourage more enforcement of the law.
In recent years, many companies—from 10 percent to 30 percent or more of employers—employ at least several million people who are misclassified as independent contractors, according to a recent NELP report. They even go so far as to require workers to form a limited liability corporation or franchise (with themselves as the one and only participant) or to sign contracts declaring that they are independent contractors. According to another study from economist Jeffrey Eisenach of George Mason University, the number of independent contractors rose by one million from 2005 to 2010, including both fake and real contractors (often unemployed workers who re-label themselves as “consultants”).
One high-profile example is the Federal Express delivery driver—who wears a FedEx uniform, drives a company truck, follows a route set by the company and still is treated as a contractor. Weil’s ruling may also tip the judgment against companies like the Uber taxi service, increasingly targeted in lawsuits as improperly treating its drivers as independent contractors.
When employers misclassify workers, they often pay less for contractors, but most important, the workers lose a wide range of protections and benefits under the law such as unemployment compensation, workers’ compensation, minimum wage and overtime regulations, and governments lose billions of dollars a year in taxes that support those programs.
In his recent book The Fissured Workplace, Weil argues that workplace phenomena like subcontracting, using independent contractors, franchising and other ways to make employers less responsible for their employees is not just a result of competition driving down costs, whether as a result of globalization, weakening of unions, new technologies or new work processes, but also “pressure from public and private capital markets to improve returns.”
Unlike the “common law” test for who is an employer, which emphasizes the degree of control over one’s work, the FLSA standard usually relies on an “economic realities” test, which examines many different dimensions of work without favoring one above all others. But in his guidance letter, Weil writes, “the ultimate inquiry under the FLSA is whether the worker is economically dependent on the employer or truly in business for him or herself.” But the varied economic realities tested include such questions as how integral the worker is to the business, how much does managerial skill affect possible profit or loss, how big is the worker’s relative investment, does the worker’s success rely on special business skills in addition to any technical skills, what kind of control does the employer exercise, or how permanent is the relation of the worker to the employer.
The impact of this guidance letter may first be felt in courtrooms and in various federal or state agencies, but Ruckelshaus hopes that employers will voluntarily take it seriously. More likely, it will only be quite meaningful if there are systematic state and federal efforts to audit employer behavior, especially in industries where abuses are common, such as lower-skill construction, home care and janitorial work. Unions are also in a position to push for more vigorous enforcement, as Ruckelshaus said the Carpenters have been.
And when it is clear that the workers are not contractors but employees, the unions can do the workers a favor and invite them to join the union.
This blog was originally posted on In These Times on July 22, 2015. Reprinted with permission.
About the Author: The author’s name is David Moberg. David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at email@example.com.
“This is worse than anything I ever saw in any of those Los Angeles sweatshops,” said Michael Eastwood, a Los Angeles Department of Labor assistant district director, reflecting on a Silicon Valley firm’s failure to pay minimum wage to eight Indian employees.
The workers, who were flown in from the company’s Bangalore offices, worked up to 122 hours a week helping Electronics for Imaging, Inc. (EFI) move its headquarters from Foster City to Fremont, CA. They were granted no overtime for their work, and were paid the equivalent of $1.21 an hour—well below California’s $8 per hour minimum wage. While working in the U.S., they continued to be paid in rupees.
An anonymous tip led the Department of Labor to investigate. The result: EFI will pay more than $40,000 in back pay to the workers, as well as a $3,500 fine.
While not one of Silicon Valley’s high-profile giants, Electronics for Imaging certainly has the cash to pay everyone a fair wage. They brought in $728 million in revenue last year and offered their CEO, Guy Gecht, a pay package valued at around $6 million.
Beverly Rubin, EFI’s vice president of HR shared services, provided the following statement to CNBC:
“To help our local IT team with a complex move of our Bay Area facility and data center, we brought a few of our IT employees from India for a short assignment in the US. … During this assignment they continued to be paid their regular pay in India, as well as a special bonus for their efforts on this project. During this process we unintentionally overlooked laws that require even foreign employees to be paid based on local US standards. When this was brought to our attention, we cooperated fully with the Department of Labor, and did not hesitate to correct our mistake and to make our Indian colleagues whole based on US laws, including for all overtime worked. We have also taken steps to ensure that this type of administrative error does not reoccur.”
In other words, they didn’t realize that foreign employees had to be paid the minimum wage of the country in which they were temporarily working — a poor excuse that neither qualifies as an apology nor indicates that EFI has any intention to stop exploiting its outsourced labor.
Given the incredibly under-resourced government agencies tasked with monitoring employers who violate labor law, the likelihood that companies will be caught is fairly low. And even if they are caught, companies like EFI are only risking miniscule fines—in the case of these Indian workers, less than $500 per worker.
So why wouldn’t companies take a gamble on paying workers so far below the minimum wage?
The EFI story seems to be representative rather than exceptional. While profits for domestic tech workers continue to skyrocket (with the exception, of course, of those workers involved in the tech-service industry), the laborers that tech hires abroad are seeing neither the pay nor the cushy work environments that distinguish their U.S. counterparts.
Adrian Chen reported for WIRED last week on the content moderation industry, an invisible workforce of up to 100,000 that operates primarily in Southeast Asia. These workers are responsible for sifting through the Internet’s ugliest corners to ensure social media users don’t come across graphic content. They spend their days examining videos and images of everything from beheadings to bestiality.
“It’s like PTSD,” one of the workers told Chen. “How would you feel watching pornography for eight hours a day, every day? How long can you take that?”
This blog originally appeared on Inthesetimes.com on October 30, 2014. Reprinted with permission. http://inthesetimes.com/working/entry/17302/silicon_valley_wage_theft_worse_than_sweatshops.
About the author: Alex Lubben is the Deputy published of InTheseTimes.
Each year, tens of thousands of immigrant “guestworkers” come to the United States on special employer-sponsored visas to work temporary jobs in landscaping, hotel housekeeping and other low-wage sectors. But for decades, these workers have beendemonized and scapegoated, accused of hurting “native” U.S. workers by driving down wages. At the same time, the immigrants themselves have spoken out about their poor wages and working conditions, and have even gone on strike and organized independent labor movements to demand the same rights and wages as that of their American counterparts. It seems the only people who like this system, in fact, are the bosses who rely on a surplus army of imported temporary labor, denied the labor protections and legal rights of citizens.
In 2011, the Department of Labor (DOL) issued major reforms to a flagship guestworker program known as H-2B, which funnels tens of thousands of migrants annually into low-wage jobs in workplaces from Florida hotel chains to crabmeat canneries. Business groups, predictably, sued to block the regulations—but last week, an appeals court finally put their arguments to rest.
The reforms, which the DOL based upon an assessment of wage rates and labor market conditions for U.S. workers, mandate pay high enough to maintain prevailing wages in sectors that recruit guestworkers, and thus sustain current working conditions. The wage rules are part of a package of guestworker program reforms proposed by the DOL, that has long been stalled by Congress and court challenges but, with this court victory, can finally be implemented.
However, Meredith Stewart, an attorney with the Southern Poverty Law Center (SPLC), which represented the workers’ groups that joined the Labor Department in fighting the suit in court, points out that employers supported the previous, laxer regulations that made it easy to pay substandard wages. “It really wasn’t until the Department of Labor issued a wage rule that would lead to substantial increases for workers that employers decided to challenge their authority to issue any regulations for the program,” she tells Working In These Times. The new rules, she says, simply mandate that “to the extent that employers are going to employ foreign workers, those foreign workers and U.S. workers need to be treated equally and fairly.”
While the pending regulations would hardly be a comprehensive overhaul, they strengthen the meager existing H-2Bprotections by barring employers from paying H-2B workers so little as to undercut existing wage levels for non-visa workers who do “substantially the same work.” Essentially, the prevailing wage standard, set according to the Labor Department’s economic assessments, aims to preserve working conditions in a given sector by preventing employers from manipulating immigrants to cheapen labor costs. It also would block employers from unfairly cutting hours and from deducting transportation or equipment costs from workers’ pay. Employers would be required to disclose more information up front in the recruitment and hiring process, about job requirements and workers’ legal rights. The regulations also help shield workers from discrimination if they complain about mistreatment—a critical protection because they depend on their employer’s sponsorship for their U.S. visa authorization and are thus easily coerced into silence.
Most controversy over guestworkers stems from the popular misconception that immigrants are to blame for supposedly “stealing” jobs. In fact, migrants often work jobs that complement, rather than displace, the employment of U.S. workers. But even in the labor markets where the importation of guestworkers has resulted in declining labor conditions, the process isdriven primarily by the labor abuses and rampant exploitation of employers—thus all workers, native and immigrant, documented and undocumented, have an interest in equalizing labor rights across the board, to resist attempts by corporations to divide and exploit the workforce with impunity. To that end, the grassroots labor organizing among guestworkers highlights a shared labor struggle in a system that robs U.S. and immigrant workers alike of dignity. Several labor scandals, such as the recent case of seafood processing workers in the massive supply chain of Wal-Mart, have shed light on the common practice of underpaying H-2B immigrants. In a 2012 report by the National Guestworker Alliance (NGA) on abuses in guestworker programs, NGA co-founder Daniel Castellanos-Contreras recalled his experience of exploitation as an H-2B worker in the aftermath of Hurricane Katrina, lured to the U.S. from his native Peru on the promise of a decent hotel-industry job.
Instead of hiring [local] workers from the displaced and jobless African American community, he sent recruiters to hire us. At around $6.00 an hour, we were cheaper. As temporary workers, we were more exploitable. We were hostage to the debt in our home countries; we were terrified of deportation…
The report details various forms of mistreatment that guestworkers like Castellanos-Contreras have suffered, such as wage theft and labor trafficking. In an email to Working In These Times, Castellanos-Contreras says of the Third Circuit Court ruling, “The court has caught up with what thousands of guestworkers have been saying since Hurricane Katrina: to stop exploitation in guestworker programs, we need higher prevailing wages, and we need protections from employer retaliation to make sure that the rules of the program are enforced.”
The H-2B reforms still face legal roadblocks, however. Another, related set of H-2B rule changes has been held up by a preliminary injunction issued by a Florida court in a separate suit, brought by Bayou Lawn & Landscape Services, which might potentially lead to a conflicting ruling by the 11th Circuit Court of Appeals—one more hurdle that has so far impeded full implementation. Outside the courts, conservative lawmakers stalled the implementation of the wage rules in 2012 by voting to block the required funding for the Labor Department to carry out the regulations. (The block was lifted in the 2014 budget legislation, which should clear the way for the new standards, according to the SPLC.) Meanwhile, tepid attempts in Congress to pass more comprehensive overhauls of both guestworker programs and the entire immigration system have foundered amid political gridlock.
Stewart says that, despite the incremental legal victories, “There’s still a long way to go to making these programs even remotely functional, from a worker advocates’ standpoint.”
On top of their demand for stronger wage standards, the fight will continue for more safeguards against abuses like fraud in the labor recruitment process, as well as protections for their right to organize. And progressive advocates for immigrant laborers ultimately want to move away from the precarious temporary labor of the current visa system–and toward an equitable immigration policy that provides genuinely equal employment opportunities and the ability to gain full citizenship. For now, though, the court’s affirmation of their basic right to fair pay marks a modest milestone in the migrants’ long journey.
This article was originally printed on Working In These Times on February 13, 2014. Reprinted with permission.
About the Author: Michelle Chen is a contributing editor at In These Times, a contributor to Working In These Times, and an editor at CultureStrike. She is also a co-producer of Asia Pacific Forum on Pacifica’s WBAI. Her work has appeared on Alternet, Colorlines.com, Ms., and The Nation, Newsday, and her old zine, cain.