WASHINGTON—Temporary worker programs in North and Central America leave guest workers unprotected and ignorant of their rights, according to a new report.
The report, titled “Quo Vadis? Recruitment and Hiring of Migrant Workers and Their Access to Social Security,” covers temporary worker programs in the United States, Canada, Mexico, and Central America.
The result of a two-year investigation by The Institute for Studies and Communication on Migration (INEDIM), the report found that temporary workers are often invisible to the laws and regulations that apply to native workers. The report used in-depth interviews and analysis of policy and law to assess how well the U.S. temporary worker system protects Mexican workers. Other migrant workers were not part of the U.S. portion of the study.
In a discussion of the report at the Woodrow Wilson Center April 17, executive director of INEDIM, Fabienne Venet Rebiffe, listed several shortcomings of the U.S. temporary worker visa program, including the lack of legal safeguards and enforcement to prevent abuse.
Specifically, the report found deficiencies in four areas: Occupational Safety and Health Act (OSHA), pensions, worker compensation, and unemployment insurance.
OHSA does not apply to agricultural employers who employ 10 workers or fewer, with some exceptions. The responsibility lies with the state that has discretion to apply OSHA safety and health standards to “small farmers.” Only 22 states have opted to do so, according to the report.
“Since 47 percent of all hired agricultural workers are employed in farms with less than 11 workers, many temporary agricultural migrant workers are not protected,” says the report.
Regulations are one thing; practice is another with respect to the use of pesticides. Because employers are rarely penalized for noncompliance, “in practice it appears very difficult to ensure compliance,” says the report.
Guest Worker Benefits
The H-2A allows employers, who have agricultural labor needs such as harvesting crops, to bring foreign workers to the United States. The report said that in 2010, about 55,000 H-2A visas were issued, with Mexico receiving over 90 percent of all visas issued.
The H-2B visa program allows employers to use alien workers in temporary nonagricultural activities. The legal limit is 66,000 visas for each fiscal year, with again workers from Mexico acquiring the most H-2B visas—about 70 percent.
All H-2A workers have workers’ compensation insurance, but coverage of H-2B workers depends on the state. In some states, it’s optional. The study found several problems to make a claim to Workers’ Compensation, mostly due to ignorance by workers in how the system works and difficulties alien workers have in speaking a foreign language.
The H-2A workers do not pay into Social Security and Medicare, and so they cannot become Social Security beneficiaries.
The H-2B workers are covered but in order to receive benefits, one must work for a specific period of time. The system is set up for four-month periods during which the worker is employed. The report learned that often these workers “do not work for a sufficient amount of four-month periods to qualify for these benefits.”
The study also notes that H-2B workers are not informed that their contributions may be recovered in the future. Employers make contributions in the worker’s name, but it’s unlikely that the worker will ever see the benefits.
Finally, collecting unemployment insurance is problematic for all temporary workers—H-2A and H-2B. Employers of agricultural temporary workers are not in the program and “states tend to exclude them from covering the unemployment insurance” required for other native workers. H-2B workers don’t qualify for unemployment insurance because the worker must be available after being laid off. That excludes the H-2B worker, who only has permission to work for the employer that requested his/her visa.
Proposed US Immigration Bill
The INEDIM report’s release coincided with a bipartisan Senate bill on immigration, which was released the day before. The bill, if passed, will address many of the concerns raised in the report pertaining to worker recruitment fees, recruiter identity, and the need for full disclosure of the job offered.
On p. 580, it says, that at the time of recruitment, there is required, in English and in the primary language of the worker, a “signed copy of the work contract between the worker and the employer.”
On p. 579, the worker must be provided “the terms and conditions of employment.” These items include the work hours, amount to be paid, the place and period of employment, and the nature of employment activities.
In general, the report is highly critical of the lack of bilateralism in the approach the United States has taken with its H-2A and H-2B temporary employment programs. The proper way is for the country of origin and the country of destination to coordinate between them to “[regulate] recruitment, contract practices and labor conditions,” says the report.
Canada and Mexico in 1966 signed SAWP (Seasonal Agricultural Workers Program), a bilateral program that provides for some migrant worker rights, including the prevailing wage, employment contracts, and health insurance. That agreement, the only one of its kind in the report, might serve as an example for the United States to emulate. But critics have faulted lapses in its enforcement of worker rights. The report says “access to unemployment protection and health care for families continues to be limited and poorly accessed by migrant workers and their families.”
The U.S. guest worker program for Mexican workers is now unilateral. That wasn’t always true. The “bracero program” was negotiated between the governments beginning in 1942, and it provided many protections for the “braceros,” Mexican migrant workers, including contracts, housing, minimum wage or prevailing wage, and a minimum number of days of work, according to the Southern Poverty Law Center (SPLC). But there were many abuses and it was abolished in 1964.
Ten percent of the braceros pay was deducted to pay for a pension plan, but it was never paid. SPLC says that hundreds of millions of dollars are estimated to be owed to Mexican workers.
The current H-2 program was revised in 1986 as part of the Immigration Reform and Control Act, and is the law now that regulates the U.S. guest worker program.