[Peace-discuss] Proposed House and Senate Bills Would Roll Back New Worker Protections in Guestworker Program

[David Johnson]

Thursday, Dec 10, 2015, 5:27 pm 

Proposed House and Senate Bills Would Roll Back New Worker Protections in
Guestworker Program

BY  <http://inthesetimes.com/community/profile/322121> Rachel Luban 

 
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Description:
http://inthesetimes.com/images/working/2325041910_44d7262c46_z.jpg

Indian H-2B guestworkers protest in New Orleans in 2008. (New Orleans
Workers' Center for Racial Justice / Flickr)   

After years of legal battles, the H-2B guestworker program finally
<http://inthesetimes.com/working/entry/17920/h2b_visa_protections> acquired
official rules in April. For the first time, workers in the program were
guaranteed basic protections like minimum hours and local average wages. But
now those rules are being challenged in several Congressional bills. The
proposed bills could dramatically alter the program, cutting protections for
U.S. and foreign workers alike, and removing the Department of Labor (DOL)
from its traditional oversight role. 

The H-2B visa program brings foreign workers to the U.S. temporarily to fill
labor shortages in low-skill, nonagricultural work. H-2B visa holders work
as landscapers and carnival attendants, seafood processors and soccer
coaches. A
<http://inthesetimes.com/working/entry/17758/guestworker_program_frozen_afte
r_court_ruling> years-long standoff between program regulations issued under
the Bush administration and those issued under the Obama administration
appeared to come to an end earlier this year. In April, DOL and the
Department of Homeland Security (DHS) jointly issued program rules very
similar to the original Obama regulations. The rules afforded protections
such as giving workers a contract in a language they understand,
guaranteeing them at least three-fourths of the hours in the contracts and
reimbursing their travel costs to and from the U.S.

Many of those protections are now being challenged in Congress-both in
substantive legislation and in the murkier appropriations process.

The more immediate challenges are being staged in riders to appropriations
bills. Riders are proposed additions to bills that may have nothing to do
with the bills themselves. Policies may be attached to bills as riders to
push them through Congress when they would not pass on their own. Most of
the H-2B riders are attached to the Department of Labor, Health and Human
Services Appropriations Act-a "must-pass" budget bill whose deadline is this
Friday.

The proposed riders include defunding enforcement of the "three-fourths
guarantee," which ensures workers are paid for at least three-fourths of the
hours in their contracts. This provision is designed to keep employers from
over-recruiting workers and then benching them when hours become scarce.

"We were promised that there would be plenty of work," says one worker in a
<https://www.youtube.com/watch?v=qsy3mJikWQE> video by migrant worker
advocacy group Centro de los Derechos del Migrante (CDM). "We traveled to
the U.S. with the dream of having greater financial stability, ... but in
the end we were not given as many hours as we had been promised." H-2B
workers often go into debt to recruiters to secure American jobs. Once in
the U.S., they are not allowed to work for anyone but the employer who
sponsors their visa, even if that employer can't or won't give them
full-time work. Then they may not be able to pay back their debts, much less
bring money home.

Naomi Tsu, a staff attorney at the Southern Poverty Law Center's Immigrant
Justice Project, emphasized the connection between debt and exploitation on
the job. "You'd have these low-wage workers who are bearing hundreds or
thousands of dollars in costs and I'm pretty concerned about how vulnerable
that leaves the worker once she arrives," she said, citing labor abuses like
a  <http://inthesetimes.com/working/entry/17657/guestworkers_new_orleans>
human trafficking case involving H-2B workers earlier this year. "She's got
to keep working for the same employer no matter how bad things are because
it's either that or else go home to the debt."

Another rider would change the way H-2B workers' wages are determined so
that employers could use "private wage surveys" to determine the wage the
workers should be paid. This methodology, invalidated by a federal court,
leads to wages significantly below those provided by the Bureau of Labor
Statistics.

While rolling back worker protections, the riders would dramatically expand
the visa program. That could inflame concerns about guestworkers' competing
with U.S. workers for jobs-especially if new wage rules mean employers can
pay guestworkers less. As of now, H-2B visas are capped at 66,000 a year,
with a few exceptions. But one rider would exempt from that cap those who
had worked in the U.S. in the past three years-potentially expanding the
program to over 200,000 guestworkers a year.

The Economic Policy Institute (EPI)
<http://www.epi.org/blog/h-2b-guestworker-program-american-wages/> found in
2011 that "the H-2B program puts downward pressure on American wages." It
<http://inthesetimes.com/working/entry/18122/h2b_visas_opposition> also
found high unemployment and stagnating wages in top H-2B occupations. The
program is supposed to be used for domestic labor shortages, but these
statistics suggest employers are using it to bypass normal labor market
pressures. Concern about American workers has united some on the Right with
those on the Left concerned about migrant workers-conservative outlet
Breitbart, for instance, has reported disapprovingly on the H-2B program and
efforts to expand it.

But those efforts also have bipartisan support. One of the most vocal
champions of the program is Democratic Senator Barbara Mikulski (D-MD), who
is also Vice Chairwoman of the Senate Appropriations Committee-a position of
influence over the appropriations riders. Mikulski has long gone to bat for
the Maryland seafood industry, which uses H-2B workers as crab-pickers,
oyster-shuckers and other seafood processors. A
<http://www.cdmigrante.org/wp-content/uploads/2012/01/PickedApart.pdf>
report by CDM and American University found low wages, erratic hours and
dangerous working conditions among Maryland's H-2B crab workers, who are
legally allowed to be paid below minimum wage. Another Democratic senator,
Mark Warner (D-VA), signed a letter with Thom Tillis (R-NC) to Mikulski and
Committee on Appropriations Chairman Thad Cochran (R-MS) asking them to keep
the riders.

But some question whether the appropriations process is the right place to
make immigration policy. Another group of senators, including Dick Durbin
(D-IL), Elizabeth Warren (D-MA) and Bernie Sanders (D-VT), signed a dueling
letter asking Cochran and Mikulski to nix the riders.

"As you know," the letter reads, "Democratic Congressional leadership has
made it clear that they will not agree to spending measures with ideological
policy riders. ... The appropriations process should not be used to bypass
the legislative process or make substantive changes to immigration law."

A coalition of progressive groups, from the AFL-CIO to the Sierra Club, has
sent a "no riders" letter to President Obama and Congress opposing all
ideological policy riders. One of the most controversial is the rider
defunding Planned Parenthood, but the letter lists over a dozen others as
examples. It notes that policy riders are often "measures that the public
opposes, and the President would likely veto as standalone legislation."

What will happen with any of the riders remains unclear, as the
appropriations process is closed and there is still time for change.
Congress could pass a continuing resolution keeping the agencies funded
while delaying passing a new budget-and postponing the riders debate. If the
Senate does pass an omnibus bill, however, the evidence is strong that Vice
Chairwoman Mikulski supports the H-2B riders.

Senator Mikulski also co-sponsored a bill with Senators Tillis, Warner, and
Bill Cassidy (R-LA) that would change H-2B regulations even more
dramatically than the appropriations riders. The Save Our Small and Seasonal
Businesses Act of 2015 contains some of the same provisions proposed as
riders-expanding the program, changing wage calculations, eliminating the
three-fourths rule-but removes even more of the worker protections included
in the Obama rules. (An equivalent bill has been introduced in the House.)

Most strikingly, it would remove the DOL altogether from its traditional
oversight role. Rules for the H-2B program have historically come from DOL,
not from legislation. In the past few years, H-2B industry groups have begun
challenging DOL's authority to regulate the program, as DHS is responsible
for immigration. To avoid the question of which agency has rulemaking
authority, DOL and DHS jointly issued the latest program regulations.
Industry groups have complained of bureaucratic red tape and unnecessary
delays in coordinating between the two agencies.

CDM's policy director Elizabeth Mauldin doesn't buy that the new regulations
are needed to streamline the program. "They're using complaints about
processing delays as a means to strip worker protections from the program
and seek to restructure it completely," she said. "There are much more
obvious and concrete ways to solve the processing delays they've experienced
that don't involve moving oversight of the program from the Department of
Labor to the Department of Homeland Security and stripping worker
protections from the program."

 

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