Academic journal article Washington International Law Journal

Ending the Silence: Thai H-2a Workers, Recruitment Fees, and the Fair Labor Standards Act

Academic journal article Washington International Law Journal

Ending the Silence: Thai H-2a Workers, Recruitment Fees, and the Fair Labor Standards Act

Article excerpt

I. INTRODUCTION

Wallapa McDonald is the owner of one of the three Thai restaurants in Yakima, Washington. Yakima, a city of 79,000,1 is located in the rural agricultural region of central Washington State, the northwestern-most state of the United States. McDonald's usual clientele is a representative sampling of the community-mostly White, some Hispanic,2 and the occasional European or Asian visitor. McDonald, who is Thai, estimates that half a dozen Thai speakers live in Yakima.4 Because she rarely encounters other Thai people in Yakima, she was understandably astounded5 when a ragged group of Thai farmers wandered into her restaurant one day in the summer of 2004.6 The men were elated to have found someone who understood their language, and they told McDonald their story.7 They had been recruited in Thailand to work in the apple orchards around Yakima8 and had come to the United States on "H-2A" temporary agricultural worker visas.9

Life in Yakima had been difficult for the Thai men. They were not earning nearly as much as they had been promised by the recruiters in Thailand, and they feared they would not be able to pay back the enormous loans that they had taken out to pay labor recruiters in Thailand.10 Their housing was cramped, and it lacked kitchen facilities.11 The workers suspected that their employers were not paying them correctly, but they had no way to verify this because none of them could speak English or read the Roman alphabet.12 Though not a legal expert herself, McDonald was certain the workers' living conditions did not meet state standards, and she called Washington State authorities to report the violations.13 She also helped the men as best she could, taking them food when their pay was late and shuttling them the thirty blocks to their hotel from her store, so they would not have to carry large bags of rice on their shoulders.14

The H-2A program, through which the Thai workers came to Yakima, is the United States' agricultural "guest worker" program.15 Established in its current form through the 1986 Immigration Reform and Control Act,16 the program allows American agricultural employers to bring foreign workers to the United States on non-immigrant visas for limited periods of time.17 Ostensibly, H-2A visas are only granted in times when there are genuine shortages of domestic labor.18 Growers who use the H-2A program usually make connections with foreign workers by using farm labor contractors, who recruit the workers in their home countries.19

Despite a host of protections and benefits provided by the H-2A program, experience has shown H-2A workers are prone to abuse by their employers.20 Thai H-2A workers are even more vulnerable than most other H-2A workers, who are predominantly Latin American. This is in part because the Thais are more linguistically and culturally isolated from the rural American communities where they come to work.21 More importantly, Thai workers pay substantial recruitment fees in Thailand to secure their H-2A jobs and usually arrive in the United States with staggering debt.22 The magnitude of their debt and the harshness of the loan terms combine with conditions engendered by the H-2A program to render workers practically unable to complain about abusive conditions and wage and hour violations. These burdens also make it virtually impossible for the workers to leave their jobs. The workers effectively find themselves in debt bondage-they are unlikely to complain and apt to remain on the job despite poor conditions.23 Protecting Thai workers from onerous recruitment fee debt would give the workers more leverage to demand safe and healthy housing and working environments.

A U.S.-based solution to recruitment fee debt is vital to enabling Thai H-2A workers to protect themselves from abuse because the Thai government cannot or will not stop Thai recruiters from charging exorbitant fees.24 The minimum wage provisions of the federal Fair Labor Standards Act25 may provide much-needed protection to Thai workers from large recruitment fees. …

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