Search for a Round Peg: Seeking a Remedy for Recruitment Abuses in the U.S. Guest Worker Program

Article excerpt

Migrant workers often incur high debt to pay recruitment fees for placement as guest workers in the United States.1 Recruiters regularly use false promises regarding working conditions and earnings opportunities to extract exorbitant fees. Workers then find low pay and dangerous conditions. Yet many workers rightly fear complaints will lead to deportation, leaving them unable to repay their debts. Theoretically, workers are protected by H-2 program regulations that prohibit shifting recruiting costs to workers. Yet these prohibitions mean little if they do not permit plaintiffs to recover the underlying fees in private actions against employers and recruiters. The H-2 regulations do not include a private right of action, and the Fair Labor Standards Act applies only in limited circumstances. Accordingly, this Note analyzes the merits of private actions for relief under three alternative sources: The Racketeer Influence Corrupt Organization Act; state tort law; and the Trafficking Victims Protection Act. Finding each approach largely ineffective in protecting the rights of guest workers, this Note suggests legal changes that would hold employers strictly liable for fees their recruiters charge. Strict liability for employers ultimately serves the policy goals of the regulatory scheme and places enforcement responsibility with those best able to police compliance.

L INTRODUCTION

The federal guest worker program has a sordid reputation of participating employers abusing workers. The program consists of the H-2A agricultural and H-2B nonagricultural visa programs, which issue temporary visas to unskilled seasonal workers in industries such as agriculture, landscaping, hospitality, and construction.2 Together, the programs employ over 120,000 migrant workers annually.3 These workers are routinely cheated out of wages, held in virtual captivity by employers and labor brokers, placed in the most dangerous jobs, without adequate safety training and equipment, forced to live in squalid conditions, and denied medical benefits for on-the-job injuries.4 Yet workers often pay thousands of dollars to in-country recruiters who falsely promise high wages, quality work, and legal immigration status. Between travel, visa, and recruitment fees, guest workers typically arrive in the United States with programrelated debt from $500 to over $10, 000. 5 This debt adds pressure to remain in unsatisfactory employment and thus enables many other abuses.

The H-2 regulations promulgated by the Department of Labor (DOL) and the Department of Homeland Security (DHS) prohibit this practice: Employers may not shift recruitment costs to workers and must prohibit their recruiters from doing so.6 However, those workers brave enough to come forward have been unable to recover recruitment fees paid to recruiters in their home countries.7 The DOL and DHS inadequately oversee the recruitment process,8 and, once visas are granted, neither agency has satisfactorily enforced the program requirements.9 Furthermore, workers are unable to initiate redress because the agency regulations lack a private right of action.10 Although the Fair Labor Standards Act (FLSA)11 may apply in extremely limited circumstances, it disallows recovery where employers are, or claim to be, unaware that recruiters are charging workers directly.

Accordingly, migrant community advocates have experimented with many statutory and common-law tactics. Three have been particularly promising: the Racketeer Influenced and Corrupt Organization Act (RICO), domestic tort claims, and the Trafficking Victims Protection Act (TVPA). Each addresses slightly different scenarios, and, practically, many complaints combine them.12 Assuming migrant worker recruiters are considered agents of U.S. employers, RICO and common-law tort claims based on mail and wire fraud could potentially be used to hold employers liable for agents' misleading acts in workers' home countries. However, both have potentially fatal extraterritoriality limitations. …