Guest workers win in court over low pay

Increased rights from recent rulings in San Francisco and Atlanta, Georgia, may force a rethinking of this immigration program.

Federal judges on both coasts this month awarded major settlements to Hispanic guest workers in rulings that could alter the US immigration debate and potentially offer new jobs to Americans.

Last week in San Francisco, a federal judge ordered back pay to braceros, the original guest workers from Mexico who laid track for American rail companies in the World War II era.

A few days earlier in Atlanta, another federal judge ruled that 3,000 pineros, the "men of the pines" who plant the massive pine plantations of the deep South, have been grossly underpaid and subjected to capricious industry rules made possible by the workers' social and physical isolation. The court also ordered compensation.

The rulings offer troubling insights into how US industries, especially in the South, exploit foreign guest workers under the loosely regulated H-2B visa program.

The court's orders to companies to pay prevailing hourly wages instead of lower piecework fees could force US timber companies to look for new labor sources – whether undocumented immigrants or out-of-work Americans – to do the backbreaking planting work with tools called dibble sticks and hoedads.

"The big question is: Are these the kinds of programs that should be the model for immigration reform?" says Mary Bauer, the pineros' attorney. "Whatever you think on paper ... in the real world these programs should give us pause."

Nearly half of the 66,000 "nonagricultural" guest workers in the 22-year-old H-2B program toil in America's deep woods. Hailing primarily from the Mayan highlands of Guatemala, they've been major players in the shift since the mid-1980s of forestry work from the virgin forests of the West to pine plantations sprouting up on disused cotton fields in places like Alabama's Black Belt.

"It's sort of a prototypical, discrete, and insular minority that needs the protection of the law, but rarely invokes those protections," says Kevin Johnson, a University of Southern California law professor and author of "Opening the Floodgates: Why America Needs to Rethink its Borders and Immigration Laws."

Workers changed standards

In the pineros case, Federal District Judge Clarence Cooper ruled that the CEO of one of the largest labor contractors, Eller & Sons of Franklin, Ga., is personally liable for breaking contracts with workers by paying them lower wages than promised and charging them for long van transportation from rundown motels to the far-flung forests where they work.

Workers, for their part, are not inclined to complain since many hand over deeds to their homes as part of the hiring process. Also, many make $400 a week in the woods – a fortune back home in their remote mountain communities.

The pineros ruling, which could cost Eller & Sons $5 million in back wages, could present a major problem for the forest industry. For one, the workers have set new standards for productivity. American workers used to plant 800 trees a day. The Guatemalan workers often plant 2,500, sometimes 4,000, trees a day. Meanwhile, they make about half what the American workers did even in the 1990s.

"The prevailing sense [among contractors] is that we can't ever go back because foreign labor has raised the production bar so high that American workers are never going to be able to compete," says Vanessa Casanova, an anthropology lecturer at the University of Texas in Brownsville, who has studied the pineros for nearly a decade.

The question of what kind of work Americans are willing to do and for how much – especially during times of unemployment – is increasingly a factor as Congress mulls expanding guest worker programs as part of major immigration reform.

Rural Southern communities that border the pine plantations are some of America's poorest. Nearly 30 percent of people in the Black Belt, for instance, live below the poverty line.

Jobs for Americans

It's possible to find US workers for a $13-an-hour prevailing wage, says Ms. Bauer, who works for the Southern Poverty Law Center, a civil rights firm in Montgomery, Ala. "But [guest workers] are not getting anywhere near $13. It's grueling work and people are getting cheated. In time, then, it's true that US workers wouldn't do the work for these wages."

Timber companies rarely hire undocumented workers, instead lobbying Congress to increase the number of H-2B workers allowed into the country. One effect of the rulings could be that contractors go farther afield to find workers who can be exploited, says Ms. Casanova.

Ghanian workers, for example, are becoming more common on pine plantations as Hispanic workers seek redress.

But as guest worker abuses come to light and the economy shows signs of worsening, immigration critics such as Bob Dane at the Federation for American Immigration Reform (FAIR) in Washington says Congress needs to drastically re-think the guest worker programs.

"These are tough economic times, and I think it's the responsibility of the federal government to increase availability of well-paying jobs domestically," says Mr. Dane. "And yet we seem to be moving constantly in the other direction, opening up opportunities for permanent and temporary foreign workers to come in."