Chamber of Commerce Sues Labor Dept Over Guest-Worker Rule Change

on April 20 2012 1:38 PM
Shrimp processors
Employees dehead Louisiana white shrimp in D'Iberville, Mississippi June 3, 2010. Many seafood processors rely regularly on access to seasonal H-2B non-agricultural workers. Other employers that commonly use the program include landscapers, hotels, marine fabricators and foresters. REUTERS

The U.S. Chamber of Commerce is hoping a federal judge will block the Labor Department's proposed changes in the way foreign unskilled guest workers are recruited under the H-2B visa program. Those changes take effect April 27.

The lawsuit, filed this week in U.S. District Court in Pensacola, Fla., contends that the Labor Department overstepped its jurisdiction by implementing wage guarantees and requiring travel reimbursements that companies must provide immigrant workers they plan to hire for low-skilled jobs. If these rules go into effect, companies hiring immigrant workers under this program, in many cases small businesses, would have to swallow higher operational costs, according to the lawsuit. The Chamber says that polices like these should be made by Department of Homeland Security.

The Chamber hopes to see a judicial injunction while the court decides if changing the H-2B visa requirements is beyond DOL's authority, said Amy Nice, executive director for the chamber's immigration policy, in an email Friday.

The H-2B visa lets foreign nationals work in the U.S. for nine months, renewable up to three years, in low-skill non-farm jobs like hotel housekeeping, seafood processing, landscaping, forestry, welding and pipefitting.  

The suit's plaintiffs are five landscaping and forestry businesses from Florida, Virginia and Arkansas. Labor Secretary Hilda Solis and Assistant Secretary for Labor, Employment and Training Jane Oates are defendants.

At issue in this case is whether an agency -- the Department of Labor (DOL) -- can change a successful statutory-based program through rulemaking, when the agency acknowledges that it lacks express rulemaking authority and acknowledges that Congress has vested rulemaking authority in another agency, says the lawsuit.

Among the changes announced in February in a 575-page Federal Register document is one that requires employers to guarantee at least 75 percent of the work and salary specified in the agreement and provide the cost of transportation to the U.S. and back home. The process by which employers must attest that they have made considerable efforts to find native workers before seeking H-2B ones will also be more involved.

The rules were set to go into effect on Monday, but Rep. Rodney Alexander (R-La.) filed a Congressional Review Act resolution on Feb. 28 giving him 60 days to get both houses to pass a resolution and have the president sign a law barring implementation of the federal agency's regulations.

Labor and immigrant rights advocates have dismissed the lawsuit as frivolous while hailing the revised rules as a step in the right direction.

The new rules will help level the playing field by protecting guest-workers from becoming cheap, captive labor, while ensuring that struggling U.S. workers have a fair shot at jobs, said Jennifer J. Rosenbaum, legal director at the National Guestworker Alliance. Congress has taken no action to block these rules, because the Department of Labor has taken a balanced approach to resolving serious and well-documented problems in the program.

While low-skilled foreign nationals, mostly from developing countries, eagerly flock to the program, numerous incidents of abuse have been documented. These workers also pay fees and transportation costs that can run into the thousands of dollars. To cover these costs they sometimes pool their extended-family resources, approach sketchy loan sharks, or borrow money using property as collateral.

But employers, especially small-business owners, say they shouldn't be held bureaucratically accountable for the actions of unscrupulous employers.

Nicolas Tinik, senior maintenance supervisor for H&M Landscaping out of Cleveland, Ohio, who has handled the company's H-2B application process for the past five years, said that while he understands the need for stipulations and laws he rejects the notion that H-2B  workers are generally mistreated. He says his company currently retains 30 seasonal H-2B workers who earn about $13 to $14 an hour, including overtime.

I'd love to find 20 more local people to hire for this work, he said. I don't know if it's a cultural norm or the entitlements factor these days, but it's depressing and disheartening to see the work ethic of many of the people who come in. Two years ago we tried to hire 15 people locally. Three of them passed the drug test. Out of those three, we never saw two of them again. The last guy came in for job orientation but didn't show up for work.

Obviously there will be abuse, Tinik added, but I wish they would just go after the rule breakers. I don't think the program itself should carry the weight of some abusive employers. Abuse happens in the American workforce every day.

Defending its opposition to what it called an already bogged-down and complicated process, the Chamber of Commerce warned that if the rules go into effect, construction projects will stall, parks and hotels will be understaffed, seafood won't make it to restaurants, landscape companies will be unable to satisfy contracts.

Labor rights advocates say the program is rife with abusive tactics, such as robbing vulnerable guest workers of overtime or holding them off the clock for periods of time longer than a native worker (who is free to work for other employers) would accept. They also claim the system acts as a wage suppressor and that companies use experienced H-2B workers to fill their most entry-level positions. Many of these workers live on or near the job sites in cramped conditions similar to those of illegal immigrants, another condition most native workers would not tolerate for the offered wages and benefits.

But Tinik and other small business owners argue that they have developed a relationship with specific people, many of whom work for years with the same company; coming to the US for seasonal work, then leaving to attend to matters back home.

We have four families that work for us regularly, said Tinik. I'd say we have a 90-percent return rate. The ones that don't come back, they do it for reasons like the wife is having a baby back home. One of our workers didn't come back because the father was sick. Our H-2B workers are treated no differently than our other employees.

More News from IBT MEDIA