BE OUR GUESTS
By David Bacon
The Nation, September 27, 2004
JULIO CESAR GUERRERO came north from Mexico in the spring of
2001 as a temporary contract worker. Recruited by Manpower of the
Americas, he was sent to North Carolina, where he began working on
the tobacco farm of Anthony Smith. After a few weeks, his fingers
started to hurt, and then one by one, his fingernails began falling
off. Although Smith told him he couldn't see a doctor, he went
anyway. The doctor said his problem was possibly caused by working
without gloves in fields sprayed with pesticides. So Guerrero, who
was employed through the H2-A federal guest worker program, called
North Carolina Legal Aid. But Smith warned him not to talk with
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
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
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
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.
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
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
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
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.
Update: On September 16, the Farm Labor Organizing Committee signed
a contract with the North Carolina Growers Association, to represent
approximately 8,000 guest workers employed by growers producing for
the Mount Olive Pickle Co. The contract, according to a FLOC
announcement, includes hiring by seniority, a grievance procedure and
wage increases, and will end the use of the blacklist for workers
covered by the agreement.