The H-2 Guest Worker program allows employers to bring agricultural workers into the country on short term work contracts (H-2A) and workers in non-agricultural jobs, such as domestic work in seasonal resorts (H-2B).
Several recent successful lawsuits brought by the Southern Poverty Law Center (SPLC) on behalf of guest workers who were inappropriately cheated out of wages, treated inappropriately in the workplace, or subjected to human trafficking has given employers a clear set of best practices for employment of guest workers.
The H-2 Guest Worker program is part of the Department of Labor, and they are responsible for oversight. But most guest workers are initially contacted in their home countries by agents who secure staff. It has become an unacceptable practice for these labor recruiters to charge usurious rates for transportation and handling before the workers arrive in the US. Employers who obtain workers by using a labor recruiter in the country of origin must be aware of these practices. It will protect a business to have a written policy that guest workers will not be charged improperly for transportation and handling before arriving in the US, and whomever in the business monitors the guest worker program should make sure that the labor recruiter is acting according to standards.
Employers are responsible for providing workers with the tools and equipment they need to do their work. A common practice that the courts take exception to is the practice of charging exorbitant amounts to workers to pay for their uniforms, gloves, tools, and equipment. Improper fees for rent and transportation were also cited in the lawsuit Southern Poverty Law Center recently settled with Kiawah Island Inn Golf Resort. The SPLC settled for $2.3 million on behalf of 240 Jamaican guest workers who were cheated out of their wages by these sort of practices.
The take-away for employers is that all equipment and supplies workers need to perform their jobs must come from the employer; also, rent and transportation must meet community standards.
Guest workers cannot change jobs once they are in this country. Two recent concerns in this area were brought up to a Senate subcommittee on Immigration and National Interest. Employers cannot loan out their workers or send them to another job site to work. They are allowed to work only for the employer originally contracted for. Also, employers cannot hold workers' legal documents to prevent them from leaving. Preventing a guest worker from leaving and holding documents like passports hostage is considered human trafficking.
If employers follow these three best practices with guest workers--1) not allowing labor brokers to charge excessive amounts for recruitment, handling, and transportation, 2) employers provide equipment and supplies for doing work, and do not charge excessive amounts for rent and transportation; and housing and transportation meet community standards, and 3) documents must not be withheld from workers, and guest workers should not be given or loaned out to other employers-- a business should be in a good position regarding liability under this program.
ABOUT THE AUTHOR: The Posey Law Firm PC, led by attorney Jake Posey, is a sharply focused government relations and business law firm based in Austin, Texas. The firm’s government relations practice advises clients and advocates for the successful development of public policy in the legislative, judicial, and executive branches of Texas government.
Representing Fortune 500 companies, respected market leaders, and some of Texas’ leading state associations, Jake Posey’s mission is to diligently deliver strategic business, political and legal solutions for his clients.