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CONCERNS ABOUT WAGE CHEATING

Mar 27, 2022
Wage Theft

As guest workers increase, so do concerns about wage cheating

— Labor Department investigations haven’t kept pace with the increase in demand for workers.

by Susan Ferriss and Joe Yerardi

For Maribel Hernández, falling ill with COVID-19 at a Louisiana crawfish processor and losing her job was terrible enough. But the Mexican guest worker was in for another shock. A federal labor investigation in 2020, initially focusing on worksite safety, revealed that the company failed to pay Hernández and 99 other guest workers a total of $138,629 in overtime earnings. 

The 100 workers were deprived of pay “amid the pandemic, when food industry workers put themselves at risk to support the economy,” U.S. Labor Department officials announced in August of 2021. Officials recently told the Center for Public Integrity that 35 of the foreign workers were also owed $12,922 in sick pay required under the Families First Coronavirus Response Act.

US Department of Labor

Shortchanging workers such as Hernández isn’t an isolated problem. From 2005 to 2020, U.S. employers around the country were ordered to pay more than $42.5 million in back wages to 69,000 workers who perform seasonal low-wage jobs on H-2A and H-2B visas.

But labor advocates are worried that many more workers are being cheated. They’re also concerned that investigations by the Labor Department — which has special oversight over guest workers — aren’t keeping pace with a dramatic increase in workers. Closed cases focused on allegations of violations specific to H-2A and H-2B visas increased only slightly from 424 cases in 2011 to 478 in 2019, according to a Public Integrity analysis of department data. Over the same period, the total number of these annual guest worker visas issued leaped from 106,000 to 302,000. Demand for more visas is surging, despite the Trump era rise in anti-foreign worker rhetoric in some states.

Like anyone employed in the U.S., guest workers have protections under the law and the right to complain to government officials, confidentially, about suspected wage theft. But advocates say that workers often hesitate because of the very structure of the H-2A and H-2B visa programs. They’re uniquely vulnerable: Guest workers’ visas tie them to a specific employer, and if a boss even suspects they’re whistleblowers, workers can fear they’ll lose their visas and a coveted chance to work legally in the United States.

“The workers who contact us, we talk to them, and a lot of them know that their rights are being violated,” said Caitlin Berberich, attorney with Southern Migrant Legal Services in Nashville,  whose clients seeking pro bono legal aid include guest workers. But many choose not to act.  

In the spring of 2020, Hernández’s immediate concern was health, not pay. She and other H-2B workers at Acadia Processors LLC in Crowley, Louisiana, began testing positive for the coronavirus. Supervisors first confined those with COVID-19 symptoms to company bunkhouses, then on May 15 ordered workers to board vehicles bound for state-supplied quarantine housing, Hernández said in a complaint she later filed with the Labor Department’s Occupational Safety and Health Administration. Coughing and in pain, Hernández and a co-worker instead headed to a hospital. They’d complained that the company was slow to prevent virus spread at work, and worried that they might not receive medical care in quarantine.

The women say they intended to resume work once healthy. But the women claim a company liaison they spoke to from the hospital told them Acadia was required to report them to immigration officials for leaving work in violation of their visas. The women filed a complaint a few weeks later with the Labor Department claiming they’d been fired in retaliation for voicing safety concerns. “I feared that staying in the quarantine housing would put my life in jeopardy,” Hernández told investigators in a sworn written statement.

Six months later, the department’s Occupational Safety and Health Administration found “insufficient evidence” to support the claim. But OSHA alerted the department’s Wage and Hour Division to suspected sick pay violations — and that led to the discovery that Acadia hadn’t properly calculated overtime pay and bonuses per pound of crawfish processed. 

Acadia Crawfish Co - Wage Cheating

Maribel Hernández fell ill with COVID-19 while working at a Louisiana crawfish processing plant in 2020. U.S. labor officials later discovered that Hernández and 99 other guest workers weren’t paid full overtime wages that year. (Courtesy of Centro de los Derechos del Migrante)

Hernández was home in Veracruz state, Mexico, when she learned of these findings. She’d left Louisiana in June of 2020 after she felt better. She eventually received a share of overtime wages and sick pay owed, which officials say Acadia has fully paid. But she missed two months of work after losing her employer-sponsored visa.

Acadia Processing didn’t respond to requests for comment. SeafoodSource.com  reported last year that Julie Broussard, a co-owner, told the industry news website: “It is our policy not to comment on legal matters.”  In June 2020, a year before the wage violation was announced, the Lafayette Advertiser spoke to Scott Broussard, a co-owner, who said Hernández and her co-worker were not fired but had “fled the scene.” He also said that Acadia had followed all the state’s recommendations for personal protective equipment and social distancing.”  

Hernández is still upset — yet she wants to be a guest worker again.

“The truth is: I want to go back,” the 31-year-old mother said during a phone interview. “I’m trying to find a new job now so I can work again and support my family.”

Enduring abuse to keep visas

Hernández’s disappointment — and desire — is not unusual among guest workers.

H-2B visas for non-farm work and H-2A visas for farm labor don’t pave the way to legally immigrate. But they do allow foreigners to legally, if temporarily, spend months at a time earning far more than at home. Mexico’s minimum daily wage is only $7.15 in U.S. dollars. Compare that to the $9.75 an hour and $14.63 for overtime beyond 40 hours a week that Acadia Processors said its guest workers would earn. If they were fast, workers could earn more than hourly minimums if they were paid by the pound of crawfish they peeled, according to Labor Department records.

But despite reams of visa-specific regulations and statutes, guest workers can feel powerless.  Most speak little English. They often work in isolated areas and depend on employers for daily needs. Some depend on bosses for meals. H-2A workers count on housing that employers are required to provide for free. Hernández and her H-2B co-workers lived in company housing for $50 a week. Most of all, workers depend on employers for visas. And to keep visas, some have endured stark abuse. 

Federal prosecutors in California, Florida and Georgia allege that labor contracting networks not only stole wages, but also committed visa fraud and other crimes. In Georgia, armed individuals allegedly menaced guest workers in fields. Less dramatic but more common are allegations of bosses cheating on overtime, refusing to pay visa and travel costs, as required, and manipulating the visa system to lower workers’ pay.

U.S employers that illegally underpay workers face few repercussions, even when they do so repeatedly. This widespread practice perpetuates income inequality, hitting lowest-paid workers hardest.

Evy Pena Centro de los Derechos del Migrante

“These programs are fundamentally flawed,” said Evy Peña, development director in Mexico City for the Centro de los Derechos del Migrante, the Center for Migrant Rights, a group based in Baltimore and Mexico. The center helped Hernández file her OSHA complaint.

Trouble starts, Peña said, because U.S. law ties workers’ visas to sponsoring employers. Workers can’t just quit and quickly find another job at will. Because of this, advocates are urging President Joe Biden’s administration to do more to protect workers who speak up from sacrificing visas and income their families need, as Hernández did. What’s more, outspoken workers risk blacklisting from future jobs, which, like retaliation, is illegal. But getting involved in a lengthy investigation can also be daunting for guest workers. Labor Department data also shows that half of H-2A and H-2B probes last seven months or longer, compared to four months for all wage theft cases.

Wage investigators declined an interview, but in an email said their unit “takes retaliation very seriously and uses all tools at its disposal when encountering employers that have engaged in retaliatory activity.”

Some guest workers, as an alternative, turn to pro bono or other attorneys they’ve heard are trustworthy.

A civil lawsuit filed last October in Louisiana, for example, accuses Sterling Sugars Sales Corp., a Franklin sugarcane processor, of having “knowingly made false statements” when it applied to the Labor Department for required clearance for guest workers. Filed by Southern Migrant Legal Services, the suit on behalf of 14 workers alleges that Sterling “knowingly misrepresented” workers’ duties by claiming that they’d be “agricultural equipment operators” eligible for H-2A farmworker visas.

Instead, the complaint alleges, the workers’ sole job was to drive big rig trucks between processors and cane fields owned by other employers. Workers earned a local guest farmworker rate of $11.88 an hour in 2021, about 40% less than comparable trucker work in the area, according to the suit. Since most of these farmworkers are exempt from federal overtime rules, Sterling also allegedly avoided paying overtime — although workers often allegedly drove as many as 80 hours a week.

If workers had H-2B instead of H-2A visas, the suit argues, pay rates would be set much higher.

Sterling didn’t respond to requests for comment, but denied wrongdoing in an initial response filed last December in U.S. District Court in Lafayette. The workers’ suit, the company argues, misstates “laws, regulations and statutes” governing guest worker programs.  Among other defenses, it alleged that its “pay practices do not and at no time did violate” the Fair Labor Standards Act, whose provisions include overtime pay requirements.

Placing workers in the wrong visa category isn’t the only way businesses can try to game the visa system. Since 2010, labor officials have confirmed 757 instances when H-2B workers performed duties that should have merited higher pay. Employers had to pay $880,000 in back wages.

To bring in guest workers, businesses must prove to the Labor Department’s Office of Foreign Labor Certification that advertising didn’t attract enough U.S. workers. Then they ask the Department of Homeland Security for clearance for visas.  

Regardless of how many individual job requests labor officials certify, Congress has capped H-2B visas at 66,000 a year. But the system includes exemptions and authorizes the Labor  Department and Homeland Security to jointly add more visas if they’re convinced businesses could otherwise suffer harm. Last year labor officials certified 181,451 H-2B jobs, far more than double the cap. In response, 20,000 more H-2B visas  have been added this year for businesses to use. H-2A visas are uncapped. Labor certifications for H-2A jobs more than doubled since 2016 and surpassed more than 317,600 in 2021. 

More than 90% of H-2A and 75% of H-2B workers are from Mexico. The programs echo the former Bracero Program, a World War II-era agreement with Mexico to supply guest workers to fill U.S. farm labor shortages. Braceros, a name derived from Spanish for “arms,” continued to be recruited until Congress ended the program in 1964 due to complaints of harsh treatment. 

Managing visas, creeping corruption

To deter abuse, U.S. consular staff who interview guest workers before granting them visas provide the workers with online information and pamphlets about their rights —  including the right to complain confidentially to labor officials.

Meanwhile, labor investigators are subject to business pressure to soften oversight. Since 2016, language attached to the Labor Department’s budget has forbidden the agency from enforcing a wage rule for H-2B workers that industries argue is too onerous. With some exceptions, the rule is that if work slows — if crawfish supply drops, for example  — guest workers must still be paid for three-fourths of the work hours contracts promised. 

To prevent businesses from using guest workers to depress wages, labor officials are empowered to set minimum pay for these jobs higher than local or prevailing rates. But Center for Migrants Rights legal director Benjamin Botts, a former Labor Department attorney, said he’s seen  employers get around protections.  

A yearslong case Botts handled in Salinas, California, led to an order to pay $1.1 million in back wages and other damages in 2016 for strawberry workers whom officials said were underpaid and extorted. Fernandez Farms managers told a group of 85 to 90 guest farmworkers they wouldn’t get jobs again, officials said, if they revealed to investigators that bosses were charging for housing and refusing to reimburse visa and travel costs that for one woman added up to $1,500. An administrative law judge determined that supervisors “made it clear to the workers that if they did disclose violations, there would be repercussions, and told the workers that the investigators would not follow through on any promises.”

Extortion is illegal on both sides of the border. But as a Government Accountability Office report recognizes, some recruiters in Mexico have demanded kickbacks for reserving jobs for workers. A bribe is considered a “cost-shifting” violation that eats into workers’ financial compensation. Failing to reimburse workers’ expenses for visas and trips to and from U.S. jobs is another cost-shifting violation. Labor Department data shows investigators confirmed nearly 22,000 cost-shifting violations resulting in payment of $3.7 million in back wages from 2005 to 2020.

Investigators also confirmed 2,300 violations of H-2A housing rules resulting in $670,000 in payments to workers.

Advocates say workers often endure some cheating to preserve what money they do get. Peer pressure can also be a factor. 

Wage Cheating Louisiana Guest Workers

“There are entire communities in Mexico that are reliant on these programs,” Peña of the Center for Migrant Rights in Mexico said. “If anyone reports abuse, it can mean that employers can retaliate not only against those specific workers who are speaking out, but also against their family members in the community.”

Louisiana guest workers Olivia Guzmán and her husband Fausto García faced pressure in Mexico as well as blacklisting from U.S. crawfish industry jobs, according to complaints they filed in 2014 and 2015, respectively, with the National Labor Relations Board. They settled their cases with compensation. In a rare recognition of harm suffered, they were also cleared recently for U visas, U.S. residency permits for crime victims or witnesses who’ve been threatened during U.S. investigations. When Guzmán met with other guest workers in Mexico to discuss concerns, she experienced intimidation, said attorney Mary Yanik, Tulane University Immigrant Rights Law Clinic director in New Orleans.

Guzmán and García belong to the Mexico-based Coalition of Sinaloan Temporary Migrant Workers. From Mexico, Guzmán told Public Integrity that many women who process crawfish complained to her about not getting overtime. “They take advantage of people with hope and desire to work,” she said.

‘I am the one with the power here’

Last September, the department sued Rivet & Sons, a 6,000-acre Louisiana farm, demanding protections for guest workers and back wages. Three workers fled the farm after workers videotaped Glynn Rivet, then co-owner of Rivet & Sons, as he cursed, brandished two pistols and fired shots near the workers on June 8. The day before, Rivet grew hostile when workers asked for more drinking water and he told them to get it from a ditch, according to the Labor Department’s Sept. 22 lawsuit.

Officials allege that the same day that Rivet fired his pistols, he transported workers to a field and drove off shouting: “I am the one with the power here.”

After the pistol incident, workers contacted police, and within days three left the farm, forfeiting jobs they expected to have from March 15 to Jan. 15, labor officials said. “Because [they] were H-2A workers, their choices were limited because they were not free to seek other employment in the United States,” officials wrote in the lawsuit. “In sum, they were trapped with only two choices: stay or go,” and three workers chose to go “to avoid further acts of violence.”

The department is demanding that Rivet & Sons pay workers who fled lost wages, travel costs and other expenses due to losing their jobs. Officials also said that one of Rivet’s sons asked workers to recant what they told police or face losing work because the farm could shut down.

Glynn Rivet was arrested June 11 and charged with four felony charges of aggravated assault and illegal use of weapons. If he completes a pre-trial diversion program, charges could be dropped. In a Dec. 30 court filing, the Rivet sons asked for the Labor Department’s suit to be halted because they’d removed their father from company ownership and management after the incident. The sons also argue that workers who left did so voluntarily.

Ideally, advocates argue, Homeland Security could agree to give guest workers who flee abuse “parole,” a temporary status, and permits to look for other worksites in need of labor. A bill in Congress would provide U visas to such workers but hasn’t advanced.

The Rivet & Sons case isn’t the first time the farm has come up in a labor dispute. Although it isn’t named as a defendant, the company figures prominently in an ongoing class-action lawsuit filed in August of 2020 in U.S. District Court for the Western District of Arkansas. H-2A workers are suing Lowry Farms, an Arkansas labor contractor, accusing it of cheating workers it supplied to Louisiana farms — including Rivet & Sons — between 2016 and 2019. Rivet & Sons is not accused of wrongdoing in the suit.

Near Baton Rouge, Louisiana, an ongoing Labor Department case against a large sugarcane farm raises fresh concerns about intimidation guest workers can face at their U.S. worksites. Marty Walsh, Biden’s secretary of labor, has said that the department intends to get tougher on employers who exploit the undocumented. In this Louisiana case, officials recognize that guest workers — though here legally — are especially vulnerable because visas tie them to employers.

Lowry Farms worker Bernabé Antonio Benito says in a sworn statement that he worked in Rivet’s sugarcane fields in 2018 with about 40 other workers. A recruiter in Mexico gave him a document guaranteeing a salary of $10.73 per hour in U.S. dollars, Benito said, but “it was not so.”

“It was never explained how my salary and those of the other workers with H-2A visas were being paid,” he said, “and it was not clear either whether it was per acre, per workday, or another way. … Most of the time, the check stubs did not show the correct number of hours that I had worked.”

In a court filing, Lowry Farms denies allegations of wrongdoing. Gregory Thomas, lawyer for the business and owner Michael Clayton Lowry declined to comment.

According to Labor Department records, officials closed a case in 2015 against a previous Lowry business, Clay Lowry Forestry, after the business paid a total of $2,567 in back wages to 37 H-2B workers and $5,000 in fines.

“We need to overhaul this entire system,” said the Lowry workers’ attorney, Anne Janet Hernández of the Southern Poverty Law Center, “to make sure that individuals can come here to work and contribute to our economy on their terms and not exploitative terms.”

Caitlin Berberich, the Southern Migrant Legal Services attorney, agrees. She represents the 14 Sterling Sugars Sales Corporation truckers who allege they were misclassified as H-2A farmworkers and underpaid in Louisiana. H-2A workers are allowed to drive products to storage, but only if they also perform a significant amount of actual farm labor, and only if their boss produces more than half of what they transport. The workers say that wasn’t true for them.

In Mexico, Maribel Hernández, the underpaid Louisiana crawfish worker, has a warning for prospective guest workers who think a permit to work in the United States guarantees fair pay and fair treatment. “Know your rights,” she said. “We came with legal papers, and we went through such pain.”

Source: publicintegrity.org

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