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Guestworker programs
in the United States, by their very nature, have subjected the
foreign workers and corresponding U.S. workers to poor wages and
working conditions. In affected occupations, guestworker status also
has contributed to the foreign and domestic workers’ lack of
economic and political bargaining power.
This
lack of bargaining power arises largely from the foreign workers’
status as "non-immigrants" on temporary visas. They are dependent on
the employers for their ability to stay in the country and their
opportunity to obtain a visa in the following year. That status
effectively prevents workers from demanding better wages or working
conditions, forming a labor union, or challenging illegal conduct.
In fact, once the Department of Labor certifies an employer’s wage
rates as acceptable, a worker who refuses to work at that wage level
is considered "unavailable" for work and can be replaced by a
guestworker.
Employers often prefer guestworkers because, as poor citizens of
poor countries, they will work to the limits of human endurance and
for low wages. Consequently, many employers create artificial labor
shortages for themselves by not recruiting United States
workers, by offering low wages and poor working conditions so as to
deter U.S. workers from applying for jobs, by forcing U.S. workers
to quit their jobs, and by firing them. Such conduct is illegal but
widespread.
Congress has recognized that the hiring of guestworkers can displace
U.S. workers and "adversely affect" the wages and working conditions
of U.S. workers. Consequently, there are some labor protections under the
H-2A temporary foreign agricultural worker program. Fewer labor
protections exist under the H-2B temporary foreign non-agricultural
worker program (used by landscape companies, resorts, and other
seasonal employers). Congress and the Administration should
substantially strengthen both the H-2A and H-2B labor protections to
improve the abysmal wages and working conditions in most of these
jobs.
Even the current labor protections are inadequately enforced. The
political will has never been present for strenuous enforcement by
the U.S. Department of Labor or state agencies. The H-2A employers
are important political constituents, well-organized into trade
associations and active in opposing labor law enforcement. The
workers are not. Private-practice lawyers rarely take guestworkers’
cases because the wage losses are too small to make the cases
economically viable. H-2A workers are eligible for federally-funded
legal services. Diminished resources and restrictions on their
activities, however, limit the effectiveness of legal services
offices. H-2B workers are ineligible for such assistance.
A Brief History
The H-2A program began in 1943 when the Florida sugar cane industry
obtained permission to hire Caribbean
workers to cut sugar cane on non-immigrant temporary visas.
The
Bracero program began at the same time to respond to alleged
wartime labor shortages. It started small but grew to 400,000 visas
per year at its peak. A total of about 4.5 million jobs were filled
by Mexican citizens by the time the Bracero program ended in
1964. The Bracero program evolved over time, but generally
was based on a government-to-government (U.S.-Mexico) agreement that
regulated recruitment and job terms. The H-2A program was not
part of an international agreement, although Caribbean nations formed a consortium (the West Indies
Central Labor Organization) to monitor and assist the program.
The
Bracero program ended in 1964 after years of controversy. The
little-known H-2 program remained on the books. It was revised in
1986 and divided into the H-2A agricultural program and the H-2B
non-agricultural program. Unlike the H-2A program, the H-2B program
has an annual numerical limit on visas (66,000 until recently, but
now higher). The H-2A program has doubled in the last ten years to
about 45,000 approved jobs. As it has increased, its reputation for
abuse has spread.
This history is relevant today. During the 1990’s, agribusiness
lobbied for legislative changes that, if successful, would have made
the H-2A program worse than the Bracero program by
reducing substantive labor protections and government oversight.
Farmworker advocates defeated those efforts.
Today, some legislators are again making proposals for new
guestworker programs, this time for millions of jobs in many
occupations. Some proponents of these guestworker programs contend
that they "would not create another Bracero program." Such
statements are wrong. Critically important to understand is that
the two guestworker programs, H-2A and Bracero, contained similar
statutory, regulatory and contractual labor protections for
recruitment, wages, benefits, transportation, minimum-work
guarantees, working conditions and housing. President Bush and
several legislators who seek a new guestworker program have omitted
from their discussions the labor protections that existed in the
Bracero program. As abusive as the Bracero program was,
some of the new proposals would be far worse.
Conclusions
An
observer of the German guestworker programs said "we wanted
guestworkers but they brought us human beings." Most guestworker
programs are predicated on denying the humanity of the workers who
fill those jobs. The guestworkers are isolated from others in
society and stigmatized. They are denied the right to compete
economically for the best available job. They are too vulnerable to
ask for better wages. Families are broken up. The workers are not
granted the democratic rights on which this country was founded. It
is indentured servitude.
The
human beings who contribute to this country through their labor
deserve immigration status. Guestworker programs should not supply
this nation’s labor.
If the moral argument is not persuasive, then consider a practical
one. One common conclusion is "guestworker programs don’t work."
That is, they do not fulfill the claimed goal of bringing in needed
workers without adding to the permanent population. As the saying
goes, "there is nothing more permanent than a temporary foreign
worker program." Some guestworkers overstay their visas or "jump
contract." In addition, the employers of guestworkers are constantly
searching out new communities in foreign countries to send laborers,
creating new migration streams, some of which last long past the
authorized migration. The people who work in the United States
should be given the opportunity to settle here as immigrants and
then as citizens who enjoy the economic opportunities and political
representation on which this country prides itself. True
immigration status should be emphasized and guestworker programs
should be de-emphasized. For agricultural workers and employers, a
reasonable compromise on these issues exists in the proposal known
as “AgJOBS,” the Agricultural Job Opportunities, Benefits and
Security Act. |
