A new report released yesterday by Baltimore based, Centro de los Derechos del Migrante (CDM) —  a transnational migrant workers’ rights organization — documents extensive labor abuses in the U.S. H-2A visa program. 

The program has expanded with a record 256,667 workers certified in FY 2019. CDM argues that, “without reform, the number of workers suffering abuse will only get larger and already-anemic government oversight will prove even less effective.”

Ripe for Reform: Abuse of Agricultural Workers in the H-2A Visa Program, is based on in-depth interviews with 100 workers across Mexico who came to the U.S. on these visas in the last four years. It documents discrimination, sexual harassment, wage theft, and health and safety violations by their employers — and a startling lack of recourse for workers. It also analyzes how in the context of the COVID-19 pandemic, the program’s systemic flaws exacerbate workers’ vulnerability to the virus. 

According to the report, the abuse of workers in the program is not the product of a few “bad apple” employers; rather, it is the foreseeable product of a program that makes workers vulnerable to abuse and offers workers virtually no bargaining power.

Ripe for Reform recommends both incremental steps, including legislative and regulatory changes, to improve the program as well as a fundamentally re-imagined model that would prioritize the human rights of H-2A workers and their families and elevate labor standards for all workers. 

Descended from early 20th century U.S. agricultural labor practices, the H-2A program’s shortcomings combine the historical exclusion of farmworkers from federal labor protections (rooted in racist Jim Crow policies) with lax federal oversight and worker coercion. Unlike the H-2B program for non-agricultural work, the H-2A program has no limit on the number of visas the government can issue. The rapid expansion has also led to increased recruitment of workers from indigenous communities in Mexico — a group that’s more vulnerable to abuse due to language barriers, geographic location, poverty, and other factors. 

All surveyed workers experienced at least one serious legal violation and 94% experienced three or more. The economically coercive practices inherent in the system make it difficult for workers to protect themselves. 

The expenses and debt accrued by workers to reach jobs often leave them with no choice but to endure abusive and dangerous conditions rather than quit and return home. Sixty two percent of workers interviewed took out loans to get the funds needed to secure the job. Additionally, 26% of workers had to pay fees to recruiters as high as $4,500 — an illegal practice that persists due to poor enforcement. These costs are even more burdensome when workers are paid less than what they were promised upon recruitment, a situation reported by 43% of surveyed workers. 

“Governments’ indifference has let fraud and malfeasance fester in these programs, trapping indebted workers in dangerous jobs with little recourse,” said Rachel Micah-Jones, founder and executive director of CDM. “In fact, the Department of Labor has proposed changes that would make the situation worse.” 

“The idea that the industry will police itself is a fantasy that’s caused terrible hardships. Even when laws are on the books, they’re routinely flouted by bad actors. New legislation is required and enforcement drastically enhanced. Nobody should have to pay to work and be coerced into tolerating abuse.” 

Many workers surveyed experienced indicators of labor trafficking: 34% reported that employers restricted their movement, and 32% described themselves as feeling they were not free to quit. One worker, “Mario,” paid more than $2,000, including $560 in recruitment fees, to secure his job picking crops in Wauchula, Florida, in Spring 2019. Said Mario, “I lived in a chicken pen made out of thin metal material that was in bad shape, and it had bunk beds with 30-40 other people.” Like Mario, 45% of respondents reported overcrowded and/or unsanitary housing conditions. Mario’s weekly wages were between $300 and $400 for over 80 hours of work. He worked every day and received no lunch or rest breaks. Mario and his fellow workers received their wages in cash but were handed payment stubs with significantly higher, inaccurate wages. 

“Once, a colleague took pictures of the payroll, and the employers threatened to return him to Mexico,” said Mario. Several of his coworkers sought to flee, and the supervisor retaliated by taking their passports. It took a tragedy for workers to be able to leave. Said Mario, “There was an accident because a man died at work […] They said that when he died, he had not had access to water.”

The report recommends that Congress take further steps to ban recruitment fees and hold employers strictly liable for any fees that are charged. Further, Congress should explicitly prohibit discrimination in worker recruitment and ensure workers who suffer abuse can access legal services while in the U.S. and abroad. 

Additionally, CDM recommends that the Department of Labor and other federal agencies allocate more resources to monitoring and inspection programs and enforcement mechanisms. The agency should work with the Department of Justice and Equal Employment Opportunity Commission to ensure access to justice for workers facing discrimination in recruitment or employment. The DOL should withdraw its proposed changes to the H-2A regulations which would further undermine workers’ rights in the program.

The report also envisions a re-creation of the temporary agricultural worker program that does at least the following: 

  • Allows workers control over the place they are employed;
  • Gives workers the right to change employers;
  • Offers workers a pathway to citizenship;
  • Offers workers the right to bring immediate family members with them to the U.S., and those family members should be given the right to work;
  • Prohibits discrimination in hiring;
  • Allows workers to join unions or other worker organizations; and
  • Provides workers the right to health care and Social Security benefits.

You can read the full report below.

Ripe-for-Reform

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