by Alex Penwill, guest blogger*
(Photo: Sheep herders’ camp above Telluride, Colo., via Creative Commons)
(This is the second post in a three-part series about migrants’ rights and human trafficking. See part one here.)
Born out of the Bracero system of the post-World War II era, the U.S. Department of Labor H-2A guestworker visa program facilitates exploitation of migrant sheep, goat and cattle herders in the western United States by binding them to a single employer, subjecting them to labor abuses and exempting them from legal protections. Due in part to individual ranchers and the influence of special interest groups such as the Western Range Association, the abuses documented in H-2A ranching can be attributed to a structurally flawed visa program that facilitates – but does little to rectify – exploitation.
As immigration reform lingers on the American political agenda, it is crucial to take a hard look at the H-2A visa system, its legislative history and exemptions from federal labor laws and the abuse guestworkers suffer as a result. In some cases, this abuse rises to the level of human trafficking, debt bondage, forced labor and indentured servitude – serious violations of national and international law.
Approximately 1,600 migrant sheep, goat and cattle herders enter the U.S. every year on H-2A visas issued by the Labor Department for temporary agricultural work, most brokered by the WRA, Mountain Plains Agricultural Service and other ranching coalitions. Because the program receives minimal government oversight and exempts employers from complying with U.S. worker protection laws, rancher-employers can easily exploit their H-2A herder-employees.
The H-2A ranching program, created by the 1986 Immigration Reform and Control Act, explicitly exempts guestworkers from many basic labor, housing and legal protections for U.S. workers. These “special procedures” exclude the 40-hour workweek, federal minimum wage, overtime pay, housing standards and private right of legal action against substandard working and living conditions.
According to Colorado Legal Services’ recent survey of 93 H-2A sheepherders, 81 percent of herders said they worked more than 70 hours per week. As of 2011, the typical monthly wage paid to H-2A herders in Colorado was just $750.This translates to $2-$3 per hour for most H-2A herders. Some earn even less.
Some ranchers also restrict herders’ communication and movement, threaten them with deportation and future visa blacklisting, and withhold food, water, pay, passports, contracts and visa documents. Geographic and social isolation, language barriers, and herders’ lack of understanding concerning rights and contracts exacerbate fear of and subservience to ranchers. Continued lobbying by the WRA and other powerful coalitions maintains this power imbalance in the H-2A herder program.
Reforms should unbind guestworkers from a single employer, strengthen federal worker protection laws, increase oversight funding and enact policies for enforcing H-2A regulations. They should improve DOL transparency, accountability and oversight of state regulators, provide easier access to the U.S. justice system, and create procedures by which guestworkers deal with abusive employers without fear of losing their visa status. The operational structure of the H-2A program should be changed so employers do not have direct and uninhibited control over recruitment. In a reformed program, the DOL could serve as a guestworker clearinghouse or intermediary between employers and guestworkers to eliminate the labor-broker-employer system, provide oversight of formally licensed recruiters and allow guestworkers to change employers when appropriate.
Reforms should provide all H-2A herders with labor, housing and legal protections equivalent to those for U.S. workers, including Occupational Safety and Health Administration standards of 100 square feet of living space per worker, 35 gallons of water per worker per day, hot and cold running water, electric lights and outlets, heating and cooking equipment, bathing and washing facilities, and toilets. Herders should have access to legal recourse against violations like those provided to U.S. workers by the Migrant and Seasonal Agricultural Worker Protection Act. Finally, H-2A herders should receive fair pay. This will require amending the minimum wage exemption in the Fair Labor Standards Act and the H-2A ranching program’s special procedures so herders receive pay at least equal to that which fulltime minimum wage workers earn, instead of the meager $2 to $3 per hour herders currently receive.
The ranching industry’s contention that increasing wages would threaten financial solvency cannot legitimize the continued exploitation of guestworkers. To mitigate shock and financial burdens to the industry, improved housing standards, better wages and other reforms could be implemented piecemeal over several years. Incremental reform would also facilitate feedback from ranchers, workers, state and federal regulators about what is and is not working. Finally, reformers could incentivize ranchers with a streamlined and simplified H-2A herder employment application and labor certification process.
Reforming the H-2A guestworker program will be fraught with controversy, particularly from those whose interests are vested in maintaining a cheap and expendable labor force. However, given the incidence of human trafficking, debt bondage, forced labor and indentured servitude associated with the H-2A system, reform is imperative if the U.S. wants to maintain its commitment to justice and equal rights. The guestworker program was intended to fill jobs, not allow employers to improve profit margins at the expense of the human dignity of an endless stream of vulnerable, foreign workers. This struggle will be no bitterer than the bone-numbing winter winds, searing summer heat and fearful silent solitude that guestworkers face daily on the desolate ranges of the United States.
*Alex Penwill is an International Administration MA candidate at the Josef Korbel School of International Studies, University of Denver. He will graduate in June 2014 with concentrations in social enterprise, technology for sustainable development, and Latin America. He can be reached at email@example.com.
**The views and opinions expressed in this blog do not necessarily reflect the position of the HTC