Immigration and Labor Rights

Friday, 17 October 2014

Administrative Relief, Family Detention & Fraud in the H-2 Visa Programs

In recent weeks President Obama has reaffirmed his commitment to announcing executive action on immigration reform before the end of the year. The President also said that he remains committed to passing immigration reform through Congress, warning that it is “suicide for the GOP not to address the issue.” Meanwhile, some Democrats running in close races have distanced themselves from pro-immigration stances. Most notably, Alison Lundergan Grimes is running an offensive “anti-amnesty” advertisement accusing incumbent Senator Mitch McConnell (R-KY) of being pro-amnesty due to his support for the 1986 immigration law that legalized undocumented immigrants. In the ad Grimes says “I’ve never supported amnesty or benefits for illegal immigrants, and I never will.” Several progressive and get-out-the-vote groups, such as MoveOn.org and the Latino Victory Project, have expressed their strong opposition to the ad, calling on Grimes to take it down.

While immigrant communities await administrative relief, detentions and deportations continue. In Florida, immigrant and worker advocates are criticizing Florida Chief Financial Officer Jeff Atwater for going after undocumented immigrants for workers’ compensation fraud. Last July, the state arrested more than 100 workers in a raid on a fruit and vegetable processing plant in Naples, FL. Workers are being charged with the felony of identity theft for using a fake ID to get a job and sign up for workers’ compensation insurance. However, the workers had not submitted any false workers’ compensation claims, which is typically what is considered workers’ compensation fraud. Instead, it appears that this is a roundabout way for Atwater to enforce immigration law.

The Obama administration is being seriously criticized for its increased use of detention facilities for families from Central America, many of whom have legitimate claims for asylum. Immigration and refugee advocates and religious organizations argue that detaining families and children is unnecessary and inhumane. The Obama Administration’s justification for detaining the families is to deter more families from coming and to ensure that they show up for court proceedings. However, the US Executive Office for Immigration Review recently stated that 85% of the unaccompanied minors who have recently entered the country and have been placed with relatives in the US are showing up for their court hearings, undermining the argument that detention is necessary.

Moreover, there are serious concerns regarding the treatment of women and children in these detention centers. MALDEF and others filed a lawsuit on behalf of women in family detention in the privately-run Karnes facility in Texas alleging sexual harassment and abuse by guards. Three guards are accused of engaging in sexual acts with detainees and making inappropriate remarks in front of children and other detainees.

However, there are some positive developments around the issue of ICE detainers. An increasing number of municipalities are refusing to honor ICE detainers, or requests to hold undocumented immigrants 48 hours past their scheduled release date from jail. Several federal court rulings on the issue have held that ICE detainers are not mandatory and they do not constitute probable cause. This opens local law enforcement up to the possibility of being sued for violating individuals’ constitutional rights. According to the LA Times, 225 local law enforcement agencies have decided to completely ignore the requests. Another 25 have limited the circumstances under which they will honor the requests to individuals who have committed more serious crimes.

Grower Representative Accused of Defrauding the U.S.

Harry Lee Wicker, Jr. was recently indicted by the federal government for criminal conspiracy to defraud the United States in a scheme involving the H-2A temporary agricultural guestworker program and the H-2B temporary nonagricultural guestworker program. Wicker is Deputy Director of the North Carolina Growers Association (NCGA), a large farm labor contractor that brings in guestworkers from Mexico, and a board member of USA Farmers, which represents employers of guestworkers.

Wicker has testified several times in Congressional hearings on behalf of agricultural employers seeking to eliminate labor protections and reduce government oversight of the H-2A program.

Wicker was added to a case that was previously filed by the U.S. Attorney in federal court in North Carolina. Wicker’s co-defendants in the 87-count indictment of USA v Eury, are Craig Stanford Eury, Jr. and Kenneth White. Eury serves as the Executive Director of NCGA and the founder and primary interest holder of International Labor Management Company (ILMC), a North Carolina company engaged in preparing and submitting applications for H-2A and H-2B workers on behalf of client companies. White is another Deputy Director of NCGA.

The indictment alleges that under a scheme to defraud, Lee Wicker improperly directed the payment of over $1,000,000 to a limited liability company under his control. The indictment seems to allege that the farm operators that are members of, and are supplied with guestworkers by, the NCGA and/or ILMC were victims of fraud. The defendants allegedly overcharged growers and pocketed the money. Among other claims, the indictment alleges that ILMC, Eury and others instructed H-2B employers on how to interview US workers so as to inhibit their hiring and to hire token US workers. The alleged result was to allow ILMC to profit from hiring guestworkers instead of United States citizens. These criminal charges, if proved, would suggest that the defendants sought to evade the federal immigration law’s requirement that qualified, available U.S. workers should be hired before an application for guestworkers is approved.

Wicker most recently testified before the House Judiciary Committee on May 16, 2013, in favor of Rep. Goodlatte’s “Agricultural Guestworker Act,” HR 1773, which would create a new program with lower wages, fewer requirements for ensuring job opportunities for U.S. citizens and lawful permanent residents, and allow exploitative conditions for hundreds of thousands of new guestworkers. According to Wicker’s testimony before the House Judiciary Committee, the NCGA has been the single largest user of H-2A agricultural guestworkers for over 15 years. In his testimony, Wicker calls the H-2A program “expensive, overly bureaucratic, [and] unnecessarily litigious.”

The H-2A program and its predecessor have been characterized by widespread evasions of their modest labor protections for U.S. and foreign workers. Indeed, a guestworker program is inherently problematic because the foreign workers are denied freedoms most workers possess and are vulnerable to abuse. Farmworker Justice has long called for greater oversight and stronger enforcement of the H-2A program’s requirements.

Labor Violations on Florida Farms

The Department of Labor’s Wage and Hour Division (WHD) issued a press release on findings of wage, housing and transportation violations under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act in its ongoing initiative focusing on Central and Northern Florida farms. So far, the WHD has assessed $100,000 in back wages for 277 workers and more than $25,000 in civil money penalties. The high rates of labor violations in agriculture is directly related to the high portion of undocumented farmworkers in the workforce and demonstrates the urgent need for legalization of undocumented immigrants. Farmworker Justice continues to advocate for Congress to pass immigration reform with a path to citizenship and for President Obama to create a broad affirmative relief program for undocumented immigrants that includes farmworkers and their families.
 

by Megan Horn
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Friday, 03 October 2014

Obama Promises Administrative Action on Immigration by the End of the Year

President Obama’s delay in announcing administrative relief for undocumented immigrants has resulted in anger and protests against him by some individuals and groups. Last night, seeking to reassure the frustrated constituency, President Obama spoke at the Congressional Hispanic Conference Institute’s (CHCI) annual gala. Sen. Menendez (D-NJ), introduced by the President, telling him “We look to you Mr. President for big, bold, unapologetic administrative relief for millions. During his keynote speech, President Obama promised that he would announce his plans for executive action by the end of the year, noting that "it's not a question of if, but when" he will take executive action on immigration reform. Administration officials and Vice President Biden have also indicated the President will take action by the end of the year. Some immigration advocates, frustrated by the delays and the continued deportations, protested President Obama at the gala.

Meanwhile, House Speaker John Boehner (R-OH) declared his desire to enact immigration reform and his belief that he can convince Republicans to do it. Boehner has repeatedly said that he supports an immigration overhaul, but he reportedly told President Obama this summer that the House would not pass immigration reform this year. The Speaker has been unwilling to bring any bills to the floor other than bills to defund or end DACA. There is no indication that House Republicans have any more interest in passing immigration reform now than they did throughout 2014. If anything, the opposite is true. With the Republican Presidential primary beginning in 2015, there is little chance that House Republicans will be willing to compromise on immigration reform. As Dara Lind writes, Boehner already asked the President to hold off on executive action last spring to give the House time to act, and the House did nothing. And again, in discussing his interest in immigration legislation, Boehner has said that if Obama acts administratively it could “poison the well.” Boehner’s repeated promises, lack of action and attempts to link legislation with the lack of any administrative relief call into his question his real motives for raising the issue of immigration legislation again at this time.

House Judiciary Chairman Bob Goodlatte (R-VA) said that if President Obama takes executive action on immigration, then Congress should sue him. Goodlatte said that Obama should work with Congress to make any changes to current policy. Goodlatte himself made no effort to reach across the aisle and come up with compromise legislation on immigration. Instead he sponsored offensive one-sided bills, such as HR 1773, “the Agricultural Guestworker Act” which would allow for growers to bring in massive numbers of agricultural guestworkers with fewer legal protections than existed in the notoriously abusive Bracero Program and no path to immigration status for the current experienced workforce. 

A poll shows that the President’s approval rating by Latinos has dropped 15% since April. Some Latino groups are encouraging Latinos not to vote for the Democratic Senators who voted for the recent attempt to end DACA. Other groups and individuals stress the need for Latinos to come out and vote to show their strength. In speaking at the CHCI conference, Maria Teresa, president of Voto Latino said, “Until we try to actually recognize that our number one initiative is to organize each other . . . we’re always going to be left behind.”

Farmworker Justice believes that voting is an opportunity for people to express their opinion on many issues, including immigration and labor rights. While only the federal government can grant immigration status with a path to citizenship to undocumented immigrants, state and local elections are important too. Some states have been passing laws that benefit farmworkers and others, such as drivers’ licenses for undocumented immigrants and increases in the state minimum wage. As another example, California recently passed several laws benefitting farmworkers and others.

Thank you for your support for farmworkers.  

by Megan Horn
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Friday, 03 October 2014

Agriculture is an industry rife with abuse of workers. Because the majority of workers are undocumented, it makes it very difficult for farmworkers to enforce the few labor protections that cover them. In the absence of immigration reform or administrative relief providing farmworkers with immigration status with a path to citizenship or protection from deportation and work authorization, the Department of Labor plays a critical role in ensuring that abuses of farmworkers are remedied.

A recent Department of Labor, Wage and Hour Division, (DOL) investigation in the Philadelphia-Southern New Jersey area highlights the importance of labor law enforcement in agriculture. The DOL investigation revealed that a farm labor contractor, Heng Heng Agency, Inc. and its president, Visith Oum, violated the Fair Labor Standards Act’s (FLSA) minimum wage and record keeping requirements and the Migrant and Seasonal Agricultural Worker Protection Act’s (AWPA) safe transportation requirements, including the requirement that farm labor contractors obtain motor vehicle insurance in compliance with the law. According to the Philadelphia Inquirer, Heng Heng supplied 125 Latino, Vietnamese and Cambodian farmworkers to Medford Nurseries in Lumberton, NJ.

DOL’s investigation also found that Medford Nurseries was a joint employer of the workers, which means that they are responsible, along with the contractor, for compliance with the Fair Labor Standards Act’s and the Migrant and Seasonal Worker Protection Act’s provisions. Medford nurseries settled with the DOL and paid $36,505 in back wages to the workers. DOL is seeking an additional $146,100 in civil money penalties from Heng Heng for its willful and repeat violations of the FLSA and AWPA.

Heng Heng and Oum have a history or labor law violations. They were recently sued by another agricultural employer, Frank Donio, Inc. to whom Heng Heng supplied labor. Donio, Inc. is seeking to recover $650,000 in back wages that Donio paid to 500 workers to settle a DOL investigation. 

Holding growers accountable under the doctrine of joint employment is essential for ensuring that exploited farmworkers receive just compensation for their injuries. As the Heng Heng case illustrates, legal action against an FLC alone may yield little in the way of lost wages or damages. FLCs are often transient, hard to find, and insolvent or otherwise judgment-proof. Suing them alone does little to provide victimized farmworkers with restitution or to deter future violations. Growers control the operation of their business, are in the best position to ensure that FLCs comply with workers’ rights, and that workers are adequately compensated if the FLCs violate the law. Holding growers accountable has proven to be the only way to effectively deter illegal conduct and provide farmworkers with meaningful remedies.

Some good news for farmworkers came out of California this week that will help address the abuses associated with farm labor contractors. The Governor signed into law AB 1897, which holds companies with 25 workers or more liable for most labor contractors’ wage violations and failure to provide workers’ compensation across industries. The law also restricts work site employers from shifting responsibility for occupational safety and health protections to contractors. In California, 55% of farmworkers employed on crop farms are hired by farm labor contractors or other intermediaries.1 At least in part, this trend reflects an effort by growers to evade responsibility for labor and immigration laws. The subcontracting model in agriculture and other forms of contingent labor supply have increasingly been used in other low-wage industries that have high rates of labor law violations as well. Although holding employers jointly liability for labor contractor violations is possible under certain federal and state labor laws, this issue often involves litigating the specific facts and circumstances of each case. AB 1897’s clear rule holding companies liable for their contractor’s wage payment and workers’ compensation will help ensure that companies exercise greater oversight over their contractors to ensure there is compliance with the law. At least one business oriented journal notes that by exercising greater oversight, company joint liability under other protections may in turn be implicated. This legislation, which was co-sponsored by the California Labor Federation, the International Brotherhood of Teamsters, and the United Food and Commercial Workers International Union and supported by the California Rural Legal Assistance Foundation, and others, should have a strong positive impact for farmworkers as well as other low-wage and contingent California workers. 

In addition to AB 1897, this past week Governor Brown signed into law two other pieces of legislation that should help prevent labor law violations for farmworkers and others. SB 1087, which is supported by the California Rural Legal Assistance Foundation and others, provides for increased sexual harassment training requirements for supervisors and farm labor contractors. Farm labor contractors will also have to answer questions about sexual harassment in their licensing exams. This legislation is one small step towards preventing the huge problem of sexual violence and harassment of farmworker women, but much more needs to be done to combat the rampant abuse.

Finally, Governor Brown signed SB 477, which provides protections for internationally recruited workers on visas coming to work in California. The Coalition to Abolish Slavery & Trafficking advocated for this bill, which is very similar to the protections included in the Senate’s comprehensive immigration reform bill, S, 744. Experiences over many years across various visa programs demonstrate the need for such oversight, monitoring, transparency and regulation of international recruitment systems. Workers’ experiences during recruitment abroad, which include fraud and debt due to recruitment fees, have a substantial impact on their earnings and working conditions in the U.S., as well as on those of the U.S. workers in the labor market where the foreign workers are employed. SB 477 seeks to address these abuses by requiring disclosures about job terms during the recruitment and prohibiting recruitment fees. SB 477 also requires foreign labor contractors to register with the Labor Commissioner and requires employers to use registered labor contractors. 

Unfortunately, Gov. Jerry Brown also vetoed legislation Sunday that would have made it harder for California farmers to stall new contracts under the California Agricultural Labor Relations Act.

Farmworker Justice applauds the California Legislature and Governor Brown for the enactment of these important laws protecting farmworkers and others. We sent a letter to Governor Brown in support of SB 1087 and AB 1897 and joined a sign-on a letter to Governor Brown from the International Labor Recruitment Working Group in support of SB 477. We continue to advocate at the federal level for immigration status and increased labor protections for farmworkers in order to end the abuse of farmworkers.  


1Philip Martin California Ag Employment: 2014 http://migrationfiles.ucdavis.edu/uploads/cf/files/2014/04/22/martin-california-ag-employment-2014.pdf (last visited July 16, 2014).

by Megan Horn
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