The Leadership Conference on Civil and Human Rights

Fundamental Worker Protections In Foreign Temporary Worker Programs

May 2007

Advocates for comprehensive immigration reform have been divided on whether the expansion of temporary worker programs is the proper mechanism to address the future flow of foreign workers. Even within the LCCR community, there have been and continue to be policy differences in this critical area. Regardless of such differences, however, we believe that there should be unanimity as to the worker protections that must accompany any temporary worker program.

This document does not mean that the LCCR is endorsing a new temporary worker program as the preferred method of addressing the future flow of workers into the United States. Rather, the following recommendations are what we believe to be essential “fixes” to current temporary worker programs, and therefore the fundamental protections that must be included in any nonimmigrant program.

First, protections must be built into the infrastructure of the programs that protect against worker abuse.

• Labor contractors should not be able to participate in worker visa programs; Only the end-use employer should be able to petition for workers. Abuses in current guestworker programs start in the home countries. Labor recruiters charge workers thousands of dollars for their visas (which leaves workers indebted to loan sharks at unconscionable rates at home), and require them to leave collateral at home (which the employers, through the recruiters use to force workers to remain silent). The result is that temporary workers arrive in the US so indebted to the labor recruiter that they can’t walk away from the job, even if they had the opportunity to do so. As an initial step, agents of employers should be barred from petitioning for workers.
• There must be an effective mechanism to test the US labor market before allowing employers to bring in foreign workers. This mechanism must accurately determine labor shortages, include adequate wage protections, guard against the displacement of US workers, and provide an adequate system for advertising jobs beyond the local labor market. Employer attestations do not adequately test the labor market.
• Workers Should be Able to Change Jobs in a Way that Preserves Labor Standards. Worker visas should be portable, that is, workers should be able to walk away from abusive employers. It is often presumed that “full portability,” which means that workers can walk away from the employer that brought them into the US and work for any other employer, without requiring that any subsequent employer test the labor market and prove that no US workers are available, is the fix to the abuses inherent in temporary worker programs. That approach is misguided because it abrogates essential fundamental wage protections. Workers in any non-immigrant category (ie, temporary), and especially those in the low-wage labor market, will always face pressure to find a new job quickly because by definition, they are not entitled to unemployment or any other safety net benefits. If subsequent employers do not have to test the labor market and therefore are not subject to prevailing wage standards, those employers will be able to employ the temporary foreign workers at substandard wages and working conditions. Therefore, portability must come with a requirement that every subsequent employer test the US labor market before hiring the foreign temporary worker.
• Employers should not be able to use temporary worker programs to evade US civil rights, employment or labor laws. Congress must specify that Title VII, Section 1981, the ADEA, and all other US employment and labor laws govern the conduct of any employer (or labor recruiter, if they are able to continue to participate in the program) who participates in any temporary worker program, even if the conduct occurs outside the United States.
  • Current law allows employers and recruiters to discriminate based on gender, age, and, presumably any other category protected under US laws, when their conduct occurs outside the US. See, Reyes-Gaona v. NC Growers’ Ass’n, 250 F.3d 861 (4th Cir. 2001).
  • Congress should also specify that workers who labor in temporary worker programs are entitled to workers’ compensation coverage and full remedies, even if they leave the US after they are injured on the job. Current law makes it practically impossible for guestworkers who are injured on the job to exercise their rights under workers’ compensation laws.

Second, all protections that are included in any statute must be enforceable. We agree that current enforcement mechanisms are a failure. At a minimum, enforcement mechanisms should be improved by:

• Requiring that employers post a bond that is at least sufficient in value to cover the temporary workers’ legal wages, and crafting a system to allow workers to make claims against the bonds.
• Adding meaningful whistleblower protections, which allow workers and their representatives to sue to enforce all state and federal labor and employment laws as well as the conditions in temporary workers’ contracts without workers having to face deportation or removal when they file a claim with any local, state or federal agency or court alleging a violation of any labor or employment law. .
• Strengthening the penalties against employers who fail to comply with the worker protections. Penalties must include remedies that are real deterrents including debarment and enhanced monetary penalties, such as punitive damages, treble damages and compensatory damages. All of these remedies must be available to workers and their representatives as a private right of action.

Third, we should ensure that workers who labor in the temporary worker programs have a path to permanent residency. At a minimum, temporary worker programs should ensure that:

• All temporary worker programs give the workers who labor in them a real ability to become permanent residents, that is, to get a “green card.”
• Any time spent in a temporary worker program must be credited toward “presence in the US” requirements for purposes of public benefits and naturalization.

* LCCR greatly appreciates the assistance of Ana Avendano (AFL-CIO), Fred Feinstein (University of Maryland), Charles Kamasaki (National Council of La Raza), and William E. Spriggs (Howard University) in the preparation of this document.