WHD Ensuring Proper Wages in the Workplace

Zealously Work to End Migrant Worker Abuse

Description of Idea :

December 14, 2020

Submitted via IDEAS page

Mark Mittelhauser

Associate Deputy Undersecretary for International Affairs

U.S. Department of Labor

RE: U.S. Department of Labor's Efforts to End Labor Trafficking National Online Dialogue

Dear Associate Deputy Undersecretary Mittelhauser:

This comment is being submitted by Centro de los Derechos del Migrante, Inc. (CDM), a binational non-profit with operations in the United States (U.S.) and Mexico dedicated to advancing justice for migrant workers. Over the past five and a half years, at least 4,315 migrant workers in temporary visa programs-- across visa categories and industries-- have been subject to human trafficking. Every year, migrant workers reach out to our offices seeking relief from coercive and trafficking-like work conditions. Earlier this year, CDM filed a lawsuit against a Michigan nursery on behalf of six H-2A agricultural Mexican workers after their employer failed to pay them their wages, leaving them without the means to buy food and contact their families back home. Furthermore, we have also documented and advocated to end human trafficking across labor migration programs through the coalition we chair, Migration that Works, a coalition of labor, migration, civil rights, and anti-trafficking organizations and academics.

The Department of Labor (DOL) has a critical and essential role in ensuring that migrant workers do not fall into labor trafficking situations. The COVID-19 global pandemic has exposed and heightened the labor abuse and systemic flaws within the temporary work visa programs. During the COVID-19 crisis, CDM has heard from many workers that leaving general abusive conditions is extremely difficult because of fears of retaliation, lack of alternative employment during the pandemic, and decreased enforcement by monitoring agencies such as the Occupational Safety and Health Administration (OSHA). We suspect similar or even more difficult constraints for workers in trafficking conditions. Thus, we welcome the DOL's efforts to receive feedback and encourage the Department to implement recommendations that strengthen protections and decrease vulnerability to abuse for migrant workers.

Temporary work visa programs and trafficking

Every year, hundreds of thousands of migrant workers in visa programs ranging from the H-2 to the J-1 to the TN visa programs, to name a few, are recruited in their home countries to work in the U.S. Workers are often coerced by illicit recruiters and employers to pay exuberant fees for the opportunity to work in the U.S. Workers often take out loans to cover these fees, only to arrive at their work site in the U.S. and find a different reality from the one that was promised: a reality of hazardous working conditions, deplorable housing, stolen wages, and even forced labor. At the time of arrival, many employers and recruiters confiscate workers' passports and identification cards, keeping workers dependent on employers for many necessities and travel back to their home countries. Because workers are often bound by their visa to a particular employer, they are particularly vulnerable to unchecked harassment and left open to exploitation and trafficking. And with little government oversight or enforcement, workers experience a difficult time accessing justice.

Recommendations

The following are a set of recommendations to ensure that migrant workers in temporary visa programs receive adequate services and anti-trafficking protections from the DOL:

  1. Prohibit charging recruitment and other pre-employment fees:

Workers who arrive indebted are more likely to remain in conditions of abuse and coercion. Through regulation, the DOL should ban employers and recruiters across all visa categories from charging workers fees for the opportunity to work. Recruitment-related costs should be borne by the employer and fees that have been paid by workers should be reimbursed by the employer. DOL should vigorously enforce these regulations, investigate workers' claims, and punish bad actors who charge workers illicit fees.

DOL should also establish an Office of Labor Recruitment Certification and Oversight. The Office should be charged with monitoring employer practices and enforcing regulations across all visa categories and industry sectors. Housed in the Wage and Hour Division (WHD), the Office should consolidate WHD's enforcement role with the functions of the Office of Foreign Labor Certification, such as certifying visas, wage rates, and recruiters. The Office should be charged with creating and maintaining a database of all labor recruiters, and should have the power to block program violators from accessing visas. The Office should receive delegated authority to enforce regulatory protections under those visas currently housed in the Department of State (DOS).

  1. Anti-Retaliation and Whistleblower Protections:

Coming forward is difficult for workers in trafficking conditions, and it is especially challenging for migrant workers whose immigration status and sole employment opportunity also depends on their employer. For example, workers who report having paid illicit fees in the H-2 program worry that coming forward will make them ineligible for future visas, even if those fees make them highly indebted and more prone to trafficking. DOL must issue regulations that include whistleblower protections to ensure that workers who acknowledge having paid fees are not fired from their current job and that the acknowledgement does not prevent them from being hired for future work, either with the same employer or other employers.

In order to encourage migrant workers to reach out for help in situations of coerced labor and trafficking and to dissuade bad actors, DOL should also actively inform employers and workers about anti-retaliation provisions and the consequences of any violations. DOL should include a statement in labor certification applications that petitioners and any agents or sub agents will comply with U.S. law during recruitment and be held legally accountable in any jurisdiction if they fail to comply.

Lastly, DOL must create an expedited investigation process for workers on temporary work visas on their cases to ensure that all witness testimony and evidence is preserved given the short-term nature of the visas.

  1. Interagency Task Force: Labor trafficking is an issue that requires dialogue and action from all parties and agencies involved. The DOL, DOS, Department of Homeland Security (DHS), and National Labor Relations Board, among other agencies, must come together and revive the interagency task force to address human trafficking in a unified manner. We believe this agency must be headed by DOL to ensure workers' interests are at the core of discussion. Through this task force, DOL must leverage interagency channels to vigorously support workers' requests for deferred action (including employment authorization) from DHS when workers seek to enforce labor or civil rights.

  2. Transparency of Temporary Workers' Visas: When workers are not informed about their employers, they are unable to make an informed decision about their employment. We encourage DOL to track visa information from all visa employment categories including J-1 and to make information about employers, companies' past violations, terms of employment, visa type, available to workers in a reliable, accessible, public website in their language. Currently, the Seasonal Jobs website only applies to a few sets of visas and is not accessible to workers.

  3. Employer Accountability: DOL must zealously enforce labor laws to prevent the worker vulnerability that underlies labor trafficking. Moreover, DOL must safeguard the workplace rights of migrant workers both while workers are in the U.S. and after they have returned to their countries of origin. We also recommend that DOL debar noncompliant and abusive companies and increase OSHA investigations. As an organization with offices in Mexico, we also encourage DOL to mandate that regional and local offices of the WHD be permitted to make international phone calls in furtherance of investigations involving migrant workers that have returned to their countries of origin.

  4. U and T Visas:

We recommend that all federal Wage and Hour investigators, and those of other agencies who may receive delegated authority, undergo required training on issues specific to temporary work visas, including deferred action requests, U visa certifications, T visas, visa sponsorship remedy, fraud in foreign labor contracting and recruitment abuse.

  1. DOL should delegate certification authority to all DOL agencies, including OSHA, for all U visa qualifying crimes.

We encourage DOL to ensure appropriate funding to WHD enforcement to protect workers who denounce or seek to denounce abusive or illegal employment or recruitment practices so that they do not fear retaliation from employers or labor contractors.

  1. Language, Cultural Competency, and Outreach in DOL:

We encourage DOL to publish multilingual educational resources, particularly in the languages most commonly spoken by migrant workers, and to increase the reach and visibility of these educational resources in migrant workers' countries of origin.

Conclusion

Even before the COVID-19 pandemic, migrant workers have served essential roles for the U.S. and are the fabric of our communities. Understanding workers' experiences and how they are recruited for these jobs is critical to ensure that these temporary work visa programs are not conduits for labor abuse. We encourage DOL to implement the recommendations above to ensure that labor trafficking is not occurring in the temporary work visa programs.

Sincerely,

Centro de los Derechos del Migrante, Inc.

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