No way to treat a guest (worker) or U.S. workers for that matter

At a recent congressional hearing called "Workforce challenges facing the agricultural industry," one Minnesota employer explained why he relies on "guest workers" to fill his seasonal jobs:

"...few Americans who are seriously seeking work will apply for, accept, and remain in seasonal and intermittent employment, especially in the agricultural sector. Many who are hired do not last long as they find the work too physically demanding or repetitive, are not willing to work in unfavorable weather conditions, or find the work schedule too demanding."

Under the U.S. Labor Department's H-2A program, agricultural employers can obtain permission to hire foreign workers for seasonal jobs if they demonstrate there's a shortage of U.S. workers to fill them. But, a recent report by Farmworker Justice explains why the agricultural guest worker program creates an environment ripe for abuse for both the guest workers and domestic workers. In No Way to Treat a Guest, the authors argue:

"Foreign guest workers should not be treated as disposable human machines, nor should they be used to deprive U.S. workers of available jobs or to undermine wages and working conditions of U.S. workers."

They provide example after example of how the guest worker program is supposed to work in theory, and how it plays out in reality.

In theory, employers must post job orders with a State's workforce agency from 60 to 75 days before they need the workers to ensure they attempt to hire U.S. workers. In practice, many employers use hiring gimmicks or impose inappropriate job requirements to 'scare away' U.S. domestic workers. One way they discourage locals from accepting a job is making them sign a labor agreement that forces them to give up their right to sue for lost wages. Some growers create situations in the fields to make it difficult for domestic workers to compete with the guest workers; (See the report's tale of Mary Jo and Kathern of Colquitt, Georgia.) If local workers "can't keep up," the employer can fire them for poor work performance. There's also a financial incentive for employers to prefer the H-2A workers: they are exempt from Social Security and unemployment taxes.

In theory, employers are required to provide at least 3/4 of the number of working hours outlined in the contract or pay wages to make up the shortfall. This is supposed to protect against over-recruitment and a guaranteed income for the guest workers. In practice, many workers are not paid the wages promised under the 3/4's guarantee. Farmworker Justice's report provides numerous examples of how this wage theft plays out.

The authors also challenge the myth extolled by many agricultural employers, like the businessman quoted above, that U.S. workers are unwilling to work hard. This alleged laziness forces companies to hire workers from abroad.

"These claims simply reveal the disproportionate power that employers hold over a foreign labor force with few rights," they write.

Let's not forget that these guest workers are economically desperate. This desperation comes from the economic crises in their home countries which forces them to seek employment thousands of miles away in a foreign land; and their utter lack of power once employed in the H-2A system. Most guest workers will put up with just about anything to keep the seasonal jobs. As one domestic farmworker in Georgia explained in the report, after being fired for not meeting the grower's production quota,

"the farmers can take advantage of the guest workers where they can't take advantage of the Americans...because we know the laws....I think it was more or less, they didn't want to Americans out there."

Using data provided by the Labor Department, the Farmworker Justice report indicates that six States had more than 5,000 H-2A workers in fiscal year 2010: Arizona, California, Florida, Georgia, Louisiana, New York, North Carolina and Oregon. They tend crops including apples, citrus, lettuce, onions, strawberries, sugarcane, and tobacco. Yet many of these States had unemployment rates higher than the national average of 9.6%. The authors note

"because the H-2A program lacks an adequate test of the labor market, employers who could have recruited and hired U.S. workers were permitted by DOL to hire foreign guest workers instead."

Farmworker Justice's "No Way to Treat a Guest" is regrettably similar to report released last year by Centro de los Derechos del Migrante and the International Human Rights Law Clinic of American University College of Law called "Picked Apart." That report examined the Labor Department's H-2B guest worker program for non-agricultural workers, specifically the hundreds of temporary workers hired to process crab on Maryland's eastern shore. Both reports offer scores of recommendations to improve the working conditions and rights of the guest workers. They also suggest that if such reforms were put in place and enforced, employers who currently use guest workers might instead have more incentive to recruit and retrain U.S. workers.