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Guerrero returned to Mexico at the end of the season. The next year, when he tried to get another job, he found his name on a blacklist maintained by MOA and the North Carolina Growers Association. Legal Aid protested, and as a result, Guerrero was sent to the United States again. That year, he worked for grower Rodney Jackson, who kept the workers' drinking water on a moving truck in the fields, forcing them to run after it with their mouths under the spigot. When Guerrero filed a complaint with OSHA, Jackson gave a warning notice, and asked him to sign it. When Guerrero refused, Jackson fired him. A foreman took him to the bus station, telling him to go back to Mexico. Again Legal Aid intervened, and got him assigned to another grower. Soon a growers' association representative gave Guerrero another warning notice, which he again refused to sign.
When the 2003 season began, Guerrero tried once more to sign up with MOA, but the recruiter told him that he'd already been given a second chance. Since he'd continued to make complaints, his name stayed on the blacklist.
Guerrero had had enough. In 2004 he became a plaintiff in a racketeering suit filed on April 13 in Wake County Superior Court, by Legal Aid of North Carolina, charging the NCGA with maintaining an illegal blacklist.
While Guerrero's case winds its way through the courts, proposals for setting up new temporary contract worker programs, in industries far beyond agriculture, are proliferating. In fact, such schemes are part of most immigration reform proposals introduced into Congress this year. Their defenders argue that increasing labor protections can put a stop to abuses, while ensuring that employers get the labor they want. However, Guerrero's experience, and that of thousands of workers like him, raises serious doubts that these programs can effectively safeguard workers' rights.
Andrew McGuffin, staff attorney for North Carolina Legal Aid, cautions, "the problem isn't that we don't have worker protection laws. It's that with guest workers they're not enforced, and when workers try to use these laws, they're blacklisted."
The growers, through NCGA, and Legal Aid have been squaring off for years. The growers' handbook warns workers not to talk to Legal Aid staff, calling them "enemies of the H2-A program" who are "trying to eliminate your job." The manual also warns workers that any effort to "deliberately restrict production" or to "work slowly" will result in discipline or termination. Strikes or slowdowns are prohibited.
Last September, a foreman for grower Chester Pilson informed guest worker Juan Villareal Abundiz that there was no more work for him because he'd talked with Legal Aid, and an NCGA rep told him he'd probably be denied a job the following season. Villareal was brought to the association office in Vass, North Carolina-a huge barn with a balcony along one side. As 200 workers gathered below, a foreman named Santos and an NCGA employee addressed them from the balcony, instructing them to take Legal Aid's pink "know your rights" booklets out of their pockets and throw them in a trashcan in the middle of the floor.
According to Villareal, NCGA head Craig Eury and his assistants gave him a paper he couldn't read, and told him if he didn't sign it, he'd have to pay his own bus fare back to Mexico. Villareal signed.
The blacklist is not secret. The manual calls it a "record of eligibility [which] contains a list of workers, who because of violations of their contract, have been suspended from the program." Although the manual says no one will be disciplined for reporting violations of their rights, in fact that happens all the time.
US Department of Labor, which certifies employers for the H2-A program, has never taken action to end the practice. Bush's first DoL Solicitor General, who would have had to support such action, was former union-busting lawyer Eugene Scalia (son of Supreme Court Justice Antonin Scalia). He was replaced in DATE TK by Howard Radzely, another management-side lawyer and former Scalia clerk.
The 1997 list, called the "1997 NCGA Ineligible for Rehire Report," consists of 1,709 names. The reason for ineligibility is most often listed as abandoning a job or voluntary resignation. Legal Aid charges that when workers are fired for complaining, they're given a paper to sign saying they quit voluntarily. Among the hundreds of names are also many whose reason for ineligibility is given as "mother sick," "death in the family," "lazy," "slow," "work hours too long," "work too hot and hard," or "slowing up other workers." In 2003, the list for just one Mexican state, Durango, had 517 names.
Abuse of the H2-A program isn't limited to North Carolina, however. The most spectacular suppression of guest workers' rights came on November 21, 1986, when Caribbean cane cutters stopped work on the Fanjul family sugar plantation in south Florida. The Fanjuls tried to pay a rate lower than that specified in the work contract, and 384 cutters refused to leave their labor camp. The family called in the cops, who used guns, batons and dogs to force workers onto buses, some in their underwear. They were taken to Miami and deported.
Workers called it the "dog war." Nine years later, Okeelanta Corp., owned by the Fanjuls, agreed to pay 355 people $1,000 each to compensate them for lost belongings, and $20,000 to Florida Legal Aid. Although the claim for lost wages was dismissed by the Palm Beach Circuit Court, the Department of Labor eventually fined the Fanjuls for shorting workers' hours and underpaying wages. In the 1990s, Okeelanta was charged with cheating guestworkers of $14 million because it paid $3.70 a ton instead of $5.30 from 1987 to 1991. But the jury was never told the company had agreed with the numbers, and so it found for the Fanjuls instead of the workers, a decision upheld on appeal. Rob Williams, director of the Tallahassee-based Migrant Farm Worker Justice Project, told the Palm Beach Post that "the lasting lesson of all this is that our government will not voluntarily protect the rights of guest workers."
Guest workers in Canada, who work under a program like H2-A, had similar experiences. On April 29, 2001, Mexicans laboring in Mastron Enterprises' tomato greenhouses in Leamington, Ontario, stopped work over complaints of abuse by a foreman. The day following the protest, 24 were deported.
Other workers told representatives of the United Farm Workers that they had been working 12-hour days, 6 1/2 days a week, without overtime pay, for $7 an hour. "What I've realized here in Canada is that employers don't hire us as human beings," one worker told the UFW. "They think we're animals. The first threat that they always make is that if you don't like it, you can go back to Mexico." Chris Ramsaroop of Justicia for Migrant Workers observes, "To change their situation migrants must be guaranteed the right to form unions, the right to social and economic mobility in Canada, and most important, the right to regularization: Workers must have the right to apply for citizenship in Canada."
If Canadian guest workers can't get rights like these, in a country where labor rights are more vigilantly enforced, how likely is it that US guest workers will fare better?
According to the AFL-CIO, workers are routinely fired in 31 percent of all US union organizing drives. Most then face, in addition, disqualification from unemployment benefits as a result of the bogus pretexts that accompany such terminations. For guest workers, however, just being without a job violates the conditions for their visas, and makes them subject to immediate deportation.
In addition, they're strangers. It's much more difficult for them to find support from unions, legal aid workers, or other community institutions. Jorge, a guest worker from Huehuetenango in Guatemala (who didn't want his real name used for fear of the blacklist), explained that when he was cheated on his wages "we didn't protest because we couldn't. We were far away from the company office," he said, "and maybe the next year they wouldn't give us the chance to go [to the US again]."
For Fernando Rodriguez Aguilar, even getting help from a priest was forbidden. Rodriguez was brought to North Carolina in 2002 to work for tobacco grower Jeffrey Lee in rural Johnston County. When he saw the crew leader selling alcoholic beverages in the fields, and cutting the hours of workers who wouldn't buy them, he complained to Father Tony Rojas. Then NCGA representative Jose Luis told him he shouldn't go to Father Tony's church. "If you keep going, you'll have problems," he threatened. Sure enough, the following season, MOA put Rodriguez on the blacklist.
John Wilhelm, president of the Hotel Employees and Restaurant Employees International Union, who also heads the AFL-CIO's immigration committee, says, "I don't think it's possible to have labor protections for contract workers." Pointing to the fact that even workers who are US citizens lose their jobs during union organizing campaigns, he says, "To think the law will protect people whose right to stay in the country ends with their job is not living in the real world."
Often the most important factor for workers, however, is the situation they face at home, in the communities from which they come. "More than the law, it's the dynamics of the [guest worker] program in developing countries that's the problem," says Mary Lee Hall, from North Carolina Legal Aid.
That problem is debt.
In the tiny towns of La Democracia and La Libertad, in northern Guatemala next to the Chiapas border, small coffee farmers are sent every year to US pine forests, where they work as H2-B guest workers, planting and tending trees that will eventually be ground to pulp for the southeast's huge paper mills. In 2001, Silvano Villatoro, a recruiter in La Democracia, offered Cecilio Domingo a job, for which he charged him 10,000 quetzales (about $1200). Domingo's wife, Natividad Maldonado, remembers that her husband "borrowed the money, hugged our children, and left." They signed over the deeds to their two plots of land to the local moneylender, who charged 12 percent interest. Maldonado was left with no money. "Because we are so poor, I took my son, who is twelve, and we went to cut coffee."
After working eight months in the US, Domingo was traveling through the Maine woods in a van that tumbled off a bridge into the Allagash River. He and fourteen other guest workers were drowned. Fortunately, he'd sent enough money home by that time for his wife to pay most of the debt.
The sole survivor of the Maine accident, Edilberto Morales, had accumulated a huge debt of 30,000 quetzales by the time he began working in the US. Debts this large are impossible to pay off by working in Guatemala, where wages on a coffee plantation are 25 quetzales a day. "That isn't enough to support your family," says Virgilio Maldonado, another guest worker. "That is barely enough to eat." Only work in the United States enables someone to pay the debt and keep their home and land. And of course the dream is always that by continuing to work, a family can add a room on a house, or buy more land and fertilizer for bigger coffee harvests. But to return year after year, workers must stay on the good side of the recruiters.
Recruitment for the H2-B program has made Silvano Villatoro a wealthy coffee planter. During Guatemala's bloody counterinsurgency war he belonged to the paramilitary Civil Defense force in La Democracia, which aided the army. Today he has become a power in town. Villatoro doesn't need a formal blacklist-"I interview each person individually," he says. He doesn't take teachers and students.
Villatoro recruited the workers who died in the Maine accident for Evergreen Forestry Services, a company fined many times for wage and hour violations. Despite these violations, Evergreen was certified by the Employment Training Administration (part of the Labor Department) every year to import H2-B workers. Paper companies who hire Evergreen and recruiters like them say they're not responsible for labor violations, a position with which courts have agreed. And when it looked like Evergreen could be on the hook for huge damages because of the Maine accident, it suddenly stopped answering its phone in Sandpoint, Idaho. "The company I represented for six years no longer exists," Villatoro said.
Guest workers are not the only migrants vulnerable to economic pressure. It can be as perilous to lose a job for an undocumented worker as it is to lose one as a guest worker. In fact, the debt accumulated by paying a smuggler to go from La Democracia to the United States is even higher-about $6,000.
But for almost anyone living in La Democracia, or the thousand Guatemalan and Mexican towns sending people to the United States, these are the two choices.
In Oaxaca, a Mexican state to the north, Juan Romualdo Gutierrez Cortez heads the Binational Indigenous Oaxacan Front. The Frente organizes those left behind in the small towns that send migrants north. "Migration is a necessity, not a choice-there is no work here," he says. Gutierrez is a teacher: "You can't tell a child to study to be a doctor if there is no work for doctors in Mexico," he explains. "Children learn by example. If a student sees his older brother migrate to the United States, build a house and buy a car, he will follow that American dream."
Gutierrez and his compatriots recognize the dual nature of this imperative. "The million migrants from Oaxaca have reactivated the economy of many communities. Migration helps pacify people. Poverty is a ticking time bomb and as long as there is money coming in from the US then there is peace. To curb migration our country has to have a better employment plan. We must push our government to think about the working class." Rick Mines, who directs the California Institute for Rural Studies, points out that migrant communities fared much better when whole families were able to migrate and settle in the United States. "Labor unionization, civic participation and wage levels all improved, as settled immigrants demanded better conditions. Families are better at protecting their rights than single men. Wives and mothers frequently become involved in US institutions and learn about their rights, helping to mobilize workers to stand their ground against unscrupulous employers."
So far, however, proposals for immigration reform are crafted more to meet the demands of business interests than the need for stable communities and families. The Essential Worker Immigration Coalition, which includes 34 major industry associations, has been particularly effective in lobbying for guest workers for the past six years. The Bush immigration reform, unveiled in January, basically embodies their program. It would allow employers to use a new 3-year temporary worker category to recruit 300,000 migrants annually. It would even force the approximately 6.5 million undocumented workers currently in the US to sign up as temporary workers, as a step towards a very uncertain eventual legalization. Following Bush's announcement, Senators Tom Daschle and Chuck Hegel introduced a bill featuring many administration proposals, especially the temporary worker expansion.
But employers have worked both sides of the aisle, and more recent liberal proposals also set up new temporary worker categories, softened with provisions for greater labor protection. Unlike the Bush scheme, the Gutierrez-Kennedy Bill, nicknamed the SOLVE Act, would not force currently undocumented workers to become guest workers. Instead it would allow people who have lived in the US for the past five years, and worked for two years, to apply for legal status. It would, however, allow employers to bring in up to 350,000 additional temporary workers, presumably through a recruitment system similar to the current one. Temporary worker visas would be renewable, and last for either 9 months or two years. Workers could bring spouses and children, and change employers after three months.
The most liberal proposal was introduced by Texas Congress member Sheila Jackson Lee, and is supported by members of the Congressional Black Caucus. It would allow people to normalize their status based on residency in the US, and would expand the numbers of permanent residency visas. It contains no temporary worker program.
Growers and farm worker unions have agreed on a joint proposal, called the AgJOBS Bill, relaxing housing and wage requirements in current guest worker programs, and making it easier for growers to claim labor shortages, in exchange for a broad legalization program for undocumented farm workers.
Behind disagreement between individual provisions, however, is a deeper division over the purpose and nature of migration. How far should US immigration policy be shaped by the desire of US employers for labor? Should migration produce strong communities able to assert their rights, or should it supply labor to industry at a cost it wants to pay?
Rick Mines points out that "there is no question that Mexican labor and the US industries that rely on it are profoundly interdependent, and this cannot and will not be eliminated with simple, unenforceable policies. The issue is not how to end this relationship, but how to lessen its negative effects."
In a world in which over 130 million people live outside the countries in which they were born, the flow of people across borders is inexorable and growing. Immigration policy, rather than halting this process, affects the status of migrants in their new host countries. The UN Convention on the Status of Migrants and Their Families tries to guarantee a new set of rights for migrants corresponding to this new era of heightened global migration. It holds both sending and receiving countries responsible for their welfare, and proposes the goal of equal status of migrant and non-migrant people. Predictably, countries sending migrants have ratified it, and those receiving them have not.
Despite their name, in guest worker programs, "People are treated neither as guests nor as workers," says Andrew McGuffin, "but as slaves for rent." Rather than competing for workers by raising wages, employers seek a less expensive, more vulnerable labor force. If supplying this labor force is a primary goal of immigration policy, then legal protections for guest workers cannot be guaranteed, since they contradict its essential purpose.
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