Doc. No. ETA-2023-0003 Improving Protections for Workers in Temporary Agricultural Employment in the United States
November 14, 2023
Dear Acting Secretary Su:
Centro de los Derechos de Migrante, Inc. (CDM) supports the changes in the Department of Labor’s proposed rule “Improving Protections for Workers in Temporary Agricultural Employment in the United States.” The proposed changes would strengthen worker protections in the H-2A program, reflecting policy recommendations that workers and advocates have made for decades.
Centro de los Derechos del Migrante co-signs the coalition comment submitted by Farmworker Justice, and we endorse all recommendations made in that comment. We submit this supplementary comment to provide additional information about the importance of key proposals and suggestions for strengthening them, highlighting the perspectives of former H-2A workers.
I. Our Organization
Founded in 2005, Centro de los Derechos del Migrante (CDM) supports Mexico-based migrant workers to defend and protect their rights as they move between their home communities in Mexico and their workplaces in the United States. CDM collaborates with workers to transform the power imbalances that harm people in the H-2A and other temporary work visa programs and to ensure that labor migration policies reflect workers’ voices, experiences, and priorities. CDM also co-founded and chairs Migration that Works, a coalition of labor, migration, civil rights, and anti-trafficking organizations and academics advancing a labor migration model that respects the human rights of workers, families, and communities.¹
In addition to providing legal support to Mexico-based migrant workers, worker engagement and leadership development are central to CDM’s mission. Since 2006, CDM has convened the Comité de Defensa del Migrante (Migrant Defense Committee, or “Comité”), a group of current and former migrant workers in the H-2A and other programs. The Comité works to empower and organize migrant workers at work in the United States and in their home communities, to create a culture of informed migration, and to center migrant workers’ perspectives in conversations about policies that affect them. Working in partnership with the Comité and other worker leaders, CDM conducts extensive outreach in H-2A and H-2B workers’ home communities and regions of employment each year, building relationships that guide our policy priorities.
II. Comments on the Proposed Rule
In preparing the comments below, CDM conducted focus groups and interviews with over 25 current and former H-2A workers and other members of H-2A sending communities with experience in temporary work programs in the United States, including members of the Comité de Defensa del Migrante. The workers who contributed to these comments generally expressed optimism about the proposed changes’ impact on the H-2A program and identified several opportunities for the Department to further strengthen the regulations to better protect workers.
This comment does not address all aspects of the proposed changes that are relevant to CDM’s work, as CDM joins the coalition comment submitted by Farmworker Justice which is more comprehensive in scope. Instead, we wish to highlight three key areas of the proposed changes that are of particular interest to CDM and the migrant workers we work alongside. In addition, we call on the Department to avoid missing the opportunity to implement protective measures against discrimination, which is pervasive in the H-2A program.
1. Enhancing recruitment transparency in the H-2A temporary work visa program.
CDM supports the Department’s efforts to enhance transparency in H-2A worker recruitment.² We encourage the Department to take the additional measures detailed in Farmworker Justice’s comment to ensure that workers have meaningful access to the information they need to safely search for and accept H-2A employment. A former Florida H-2A worker described:
What workers seek is trust, or the possibility of trust, in the person who offers them work. . . There should be a process by which a worker can have confidence [in an H-2A job opportunity]. For me, that would mean that the worker can verify the type of work, the salary, the housing, and everything that comes with that job. So that we aren’t made to feel inferior, because we need to be able to travel to work with confidence. That’s why we go – to work hard, to contribute, and to be able to go home. Not to be mistreated or cheated out of our money.³
Lack of transparency in recruitment allows fraud, fees, and other abuses to proliferate. Because recruitment scams are so widespread, workers struggle to find legitimate job offers.4 As a result, recruiters who do have access to real H-2A jobs are empowered to charge unlawful fees. As a former H-2A worker who worked for five years in North Carolina explained:
The last time I went to work [in the H-2A program] was in 2018, since then I haven’t been able to get a new job offer. The principal difficulty is that recruiters charge fees to give me another opportunity or include me in a list [of H-2A beneficiaries], and I don’t have the resources to make these payments – not to mention that the payments are illegal.5
Creating a public recruiter registry is an important step towards addressing recruitment abuse, but as the North Carolina H-2A worker describes above, potential H-2A workers need easy access to more information to verify recruiters’ legitimacy and confirm the details of purported job offers. As detailed in the Farmworker Justice comment, the current H-2B Foreign Labor Recruiter List that the recruiter registry proposal is modeled on is largely inaccessible to workers, as it is not translated into any language other than English and is almost impossible to utilize from a mobile browser, among other reasons. In addition, the H-2B Foreign Labor Recruitment List includes no information about specific jobs and the employers offering them, including job duties, pay, work location, expected hours, and employer information. This information should be available on SeasonalJobs.dol.gov. We strongly endorse the Farmworker Justice comment’s recommendation that the Department combine the employment information already available on SeasonalJobs.dol.gov with the recruiter registry, making this information available to all prospective workers at the time of recruitment in Spanish and other languages common to workers regularly recruited for H-2A positions. The Department should also improve the accessibility and accuracy of a recruiter registry that incorporates substantive content from SeasonalJobs.dol.gov, which in its current form is itself difficult for workers to navigate and often contains outdated information. Critically, the Department must ensure that recruiter information linked to SeasonalJobs.dol.gov is continually updated
A challenge workers identify to the utility of a recruiter registry is the fact that there are often several links in the recruitment chain, and–frequently due to a lack of due diligence–employers may not know the identity of all recruiters and agents they are relying on to find the H-2A workers whose labor they benefit from. A former H-2A worker describes a situation in his community that is common in H-2A recruitment: the employer connects with one agent for recruitment, who in turn connects with another agent, but the recruiter who is in direct contact with the employer doesn’t take steps to identify the second recruiter’s employees or agents who carry out the actual recruitment activities–“there is no communication between them.”6 Recruiters may also work with other facilitators in the recruitment process who themselves charge unlawful fees to workers or engage in fraud or misrepresentation regarding job offers. Proposed sections 655.137(b) and 655.135(p), which would require H-2A employers to identify all “persons and entities hired by or working for the foreign labor recruiter and any of the agents or employees of those persons and entities who will recruit or solicit prospective H–2A workers for the job opportunities offered by the employer” represent an important first step. We appreciate the Department setting the expectation that employers will ask their primary recruiters who “the recruiter plans to use to recruit workers in foreign countries, and whether those persons or entities plan to hire other persons or entities to conduct such recruitment.”7 However, the Department should go further to require H-2A employers to affirmatively vet and monitor all recruiters in their recruitment chain, including creating due diligence processes to identify any agents or intermediaries not voluntarily disclosed by primary recruiters.
To make the benefits of improved transparency meaningful, H-2A workers also need avenues to directly communicate with employers during the recruitment process. A member of CDM’s Comité de Defensa del Migrante explains, “The government should have a mechanism that ensures that a worker can directly tell [an employer about recruitment abuses] because otherwise employers wash their hands and say ‘I didn’t know.’”8 Moreover, employers need incentives to take action when they learn of abuses in their recruitment chain. As the former H-2A worker who spent several seasons in North Carolina explained, “A problem I see is that when one, as a worker, complains to an employer about a recruiter’s bad treatment, the employer doesn’t take the worker seriously . . . they don’t properly investigate the situation.”9
To address this, the Department should require H-2A employers to take steps to be directly available to workers during the recruitment process and create procedures for promptly addressing any abuses the workers report. For example, the Department could require each H-2A employer to designate a “Compliance Officer,” who reports directly to the employer and who is responsible for investigating and addressing unlawful fees charged in the recruitment process, and to provide that person’s contact information to the Department. Just as current regulations require that employers’ contracts with recruiters prohibit charging recruitment fees, the Department could require that such contracts obligate recruiters to provide the Compliance Officer’s direct contact information to workers as part of the initial job offer, in addition to information about their rights in the recruitment process and assurances against retaliation for reporting any concerns.10 The Department could require employers to maintain, and provide to the Department upon request, documentation of any reports received by the Compliance Officer and the steps taken to investigate them as part of employers’ document retention obligations under section 655.167.
In the long run, workers emphasize the need to move towards a more just recruitment model through which workers would be able to connect directly with vetted, legitimate employers through a multilingual and accessible government database of verified job offers.11 As a member of the Comité de Defensa del Migrante describes:
The government should create a platform or application that explains the necessary steps to take, where I as a worker can register to be able to apply for work through that application. Through this application, we can do away with recruiters. I wouldn’t have to pay a recruiter if through this application I can sign up [for H-2A work] myself, the employer can select me through the application, and the government can monitor the process. This way, recruitment fees would be eliminated.12
The workers CDM spoke to in the preparation of this comment were overwhelmingly in support of the creation of a platform like the one described above and identified the potential of this idea to uphold program integrity and facilitate the Department’s more efficient enforcement of the H-2A program rules. Members of the Comité de Defensa del Migrante suggested that a direct recruitment platform could also provide an avenue for workers to report abuses during the recruitment process, and even after arrival at the workplace, directly to employers.13 Further, workers noted that a direct recruitment platform hosted by the Department would better enable the Department to monitor H-2A workers’ working conditions: the Department could use the platform to reach out to workers “and ask about [their] experience and how it went with [their H-2A] employer.”14 For example, the Department could use worker contact information to survey workers about their recruitment and H-2A work experiences after completion of their H-2A contracts. Workers would be less likely to be intimidated into not reporting unlawful fees or other abuses after the contract is completed,15 and the Department could use the information obtained from these worker surveys to identify gaps in enforcement and better prioritize the use of scarce resources in determining which employers to initiate investigations of.
Finally, a direct recruitment platform will be critical to make the improvements to portability of H-2 employment currently proposed by the Department of Homeland Security (DHS) real for H-2A workers.16 In proposing these changes, DHS recognizes the contingency of H-2 workers’ immigration upon their continued employment with a sponsoring employer forces many H-2A workers to choose between enduring illegal work conditions and returning to their home countries.17 If implemented, the proposed regulation would allow an H-2A worker to start new employment with a new H-2A employer upon the proper filing of a new, non-frivolous H-2A petition.18 To facilitate this, DHS also proposes a 60-day grace period after the early termination of an H-2A worker’s employment for any reason, during which the worker would be authorize to remain in the United States to seek a new job.18 While these provisions are well-intentioned and would represent an improvement over the current status quo, they will make little difference to H-2A workers who are unable to directly connect with alternative H-2A employers to find new H-2A employment. As another former H-2A who worked in Florida worker put it, “How will you [as an H-2A worker] find another company if you don’t know where to go for work? Especially if it’s your first time coming [to the United States for H-2A work], and the ranches are isolated, how are you going to find another contract?”20
The Department should take this opportunity to create an integrated, accessible platform that moves towards a more just model of H-2A recruitment by putting more control in workers’ hands. To the extent the Department considers this is outside of the scope of the current rulemaking, we ask that it be considered for future regulatory and/or sub-regulatory action.
2. Strengthening measures to combat trafficking and forced labor.
CDM strongly supports the Department’s proposal to expressly prohibit the taking or withholding of a worker’s passport, visa, or other immigration or identification documents against the worker’s wishes in a new paragraph at § 655.135(o), and its proposal to make this violation grounds for debarment under § 655.182(d)(1)(viii) and 29 CFR 501.20(d)(1)(viii). As the Department has recognized, H–2A workers are extremely vulnerable to labor exploitation, and retaining a worker’s passport or other documents can be a powerful form of coercion. We urge the Department not to broaden the proposed exceptions to this provision, as their narrowness is critical to ensuring that these proposed changes can achieve their goal of preventing forced labor through this type of coercion.
We would encourage the Department to use this opportunity to address another highly coercive practice that furthers exploitation in the H-2A program: the imposing of breach of contract fees and other severe penalties on H-2 workers who leave—or attempt to leave—employment before the scheduled conclusion of the work contract. This practice attempts to use legal mechanisms to coerce workers into remaining in H-2 employment even against their will, and in many cases constitutes trafficking or forced labor.21 Similar practices include recruiters requiring H-2 employees to sign promissory notes that the recruiter can then enforce in the worker’s home country, and requiring workers or their family members to sign over the deeds to their home or vehicle title as security for completion of their work. Recruiters then threaten to enforce these agreements to coerce workers into remaining with their H-2A employers as long as the employer requires, regardless of how bad the working conditions are. These instruments’ coercive effect is heightened when they are signed by workers’ family members because even if workers escape trafficking or forced labor and seek refuge in the United States, the recruiters can attempt to collect against the family members. In Mexico, CDM has observed H-2 employers’ agents taking legal action to enforce IOUs for thousands of dollars and to evict workers’ families from their homes. Workers have little recourse to challenge this type of action.
Another former H-2A worker who worked in Florida described his experience:
In my community, there are not many recruiters, so you have to take what you can get if you want to work and have opportunity. I was charged 30,000 pesos [roughly $1,700 in 2023 dollars] for the visa, payable to the recruiter. The recruiter took all this money and said that if we didn’t pay, he wouldn’t take us to work. This is how it works not only in our town. [At the H-2A workplace] there were people from other states who, once we were already in the United States, told me that they weren’t able to get the 30,000 pesos together so they gave the recruiters deeds to their land or papers for their car. When [other H-2A applicants and I] went to the recruiter’s house, he held a videoconference with the employer.
The employer was watching the interview and listening to what one of the recruiters asked . . . After the employer selected us, the recruiter made us sign a promissory note for 200,000 pesos [over $11,000 in 2023], which was his to keep. And he clearly told us that he would keep it until we completed the contract and returned to Mexico; then we could go to him and ask him to destroy the note . . . Before you go to the United States, the recruiter tells you, “Never say that I charged you,” or “Don’t talk about money.” This is a threat.
But [after arriving at the H-2A workplace], I began to think that the employer did know about the money the recruiter had charged, and the promissory note he had required us to sign, because that’s the only way [the employer] could have had us working in that way, without ever leaving, in the conditions that they dictated. Only with the fear of the promissory note would they be able to retain us in a business like that. Someone who had felt free to leave would have left without thinking about it. But people wouldn’t leave because they were trapped. It was my first time [in H-2A employment] but other workers who had had different contracts before said it was the worst place they had ever worked. [But] we couldn’t leave because the owner of the company would say, “If someone escapes from here, I will personally file a report with the consulate that you have escaped.” For that reason, I never wanted to go anywhere –that and the promissory note.22
To better address the range of ways in which H-2 employers impose breach of contract penalties on workers and their families, we recommend that the Department amend section 655.135(j) as follows. Our suggested edits are bolded and underlined:
(j) Comply with the prohibition against employees paying fees. The employer and its agents have not sought or received payment of any kind from any employee subject to 8 U.S.C. 1188 for any activity related to obtaining H–2A labor certification, including payment of the employer’s attorney fees, application fees, or recruitment costs. For purposes of this paragraph (j), payment includes, but is not limited to, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in kind payments, and free labor paid or provided by the employee, a relative of the employee, or any person acting on the employee’s behalf. For the purposes of this paragraph (j), payment also includes requiring the employee or any person related to the employee or acting on the employee’s behalf to sign a negotiable instrument or grant a security interest in any collateral. The provision in this paragraph (j) does not prohibit employers or their agents from receiving reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.
With this addition, proposed section 655.182(d)(1)(viii) would be strengthened to provide for debarment in the event of a determination that an employer or its agent required an H-2A worker or their family member to sign a coercive promissory note like the one the Florida H-2A worker described above.23 Moreover, this addition would create alignment with DHS’s proposed revisions to 8 C.F.R. § 214.2(h)(5)(xi), which would clarify that fees prohibited in H-2A recruitment include breach of contract fees and penalties.24 To the extent the Department determines this suggested change is outside of the scope of the current rulemaking, we ask that it be considered for future regulatory action.
3. Ensuring that key service providers and labor organizations can meaningfully support H-2A workers.
CDM strongly supports improving key service providers’ and labor organizations’ access to H-2A worker housing “to protect the right of association and access to information for H-2A workers and workers in corresponding employment and address the isolation that contributes to the vulnerability of some H-2A workers.”25 In the words of the H-2A worker who recounted the harrowing experience with the promissory note described above:
I think there should be a law that lets human rights and other organizations enter the [H-2A] ranches to see workers and speak with them, find out how they are being treated, [and make sure] that they are not experiencing labor abuses more than anything else . . . because we’d say that [H-2A employers] abuse workers because they know that on those ranches, human rights and other organizations are never going to come in to see the workers. They think that no one can report them, and workers are also scared to report their employers because they don’t know where to go or have a number . . . since [workers] also don’t know how the laws here work and [have] fear of not knowing where to go or who to turn to for help in this country.26
This worker’s comment illustrates why it is so critical that the Department expand the proposed right of access to workers’ housing to include not just labor organizations, but also all key service providers, using the new definition of “key service provider” proposed in section 655.103(b). In response to the Department’s request for comments on other specific aspects of the camp access provisions, we recommend the following amendments to the proposed changes:
- DOL should eliminate the proposed arbitrary restrictions on access in section 655.135(n)(2), including the restriction of access to 10 hours per month.27
- Like labor organizations, key service providers should be able to request a complete and up-to-date list of H-2A workers and workers in corresponding employment, with full contact details for each worker.28 The coalition comment describes a recent experience our organization had which underscores the need for key service providers to have access to this information: after conducting online outreach for a recent legal clinic, CDM staff arrived at workers’ housing to conduct additional in-person outreach only to find no workers present—even though they were visiting outside of typical work hours. H-2A workers later disclosed that their employer required them to report to work during the time that CDM visited, even though there was no work to do.
For more details, please see the coalition comment submitted by Farmworker Justice.
4. Anti-discrimination protections.
Discrimination is rampant in the H-2A and other temporary labor migration programs.29 H-2A employers and recruiters routinely violate U.S. anti-discrimination laws prohibiting discrimination in hiring and employment based on race, color, age, sex—including pregnancy, sexual orientation, gender identity—religion, and national origin. For example, H-2A employers and recruiters regularly post job advertisements hiring “men only” or male workers who are “19 to 49” years old.30 Once in the United States, women workers frequently experience sexual harassment and other discrimination.31 However, the United States government currently fails to adequately enforce protections against discrimination, creating perverse incentives for H-2A employers to bypass available U.S. workers and suppress wages and labor standards.
A former H-2B worker and H-2A applicant who filed a petition challenging gender discrimination in the H-2 programs under the United States-Mexico-Canada Agreement describes the way this unchecked discrimination plays out in her community:
I have tried to apply for H-2A jobs and I have continued facing discrimination. Over the last year, I have come across many H-2A job ads on social media. But [each time], I realized very quickly that I am not eligible: they are exclusively hiring men.
In April 2021, I saw a Facebook ad for farm work in the United States with an H-2A visa. The ad mentioned they were only hiring men. Since I have pressing economic needs, I still decided to submit an application. I filled out the application online that explicitly asked about my gender. I did not receive a response for months. In September, I realized the people hired for that particular job were about to travel to the United States. The group was composed exclusively of men.
Since , I have seen hundreds of men—both from my community and from neighboring ones—travel to work in the United States with H-2A visas. However, I have not seen a single woman afforded the same opportunity.32
To help address discrimination in the H-2A program, the Department should take the opportunity of this rulemaking to require H-2A employers to attest that they do not discriminate and include non-discrimination statements in job orders.
In addition, the Department should require that employers’ contracts with recruiters prohibit recruiters from discriminating based on a protected characteristic, just as current regulations require that employers’ contracts with recruiters prohibit charging recruitment fees.33 In addition to these preventative measures, the Department should improve remedies for H-2A workers and applicants who face discrimination. Currently, enforcing Title VII and many other discrimination laws requires workers to exhaust their administrative remedies by filing a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) and obtaining a notice of a right to sue. But the EEOC’s charge filing system is largely inaccessible to H-2A workers: the EEOC’s Charge of Discrimination form is only available in English, the EEOC does not accept charges by phone, and the EEOC’s online portal to receive complaints is inaccessible from outside the United States.34 To address these inadequacies, and in light of the particular ways that discrimination is enacted in the H-2A program, the Department should create independent anti-discrimination protections for H-2A workers that are enforceable by the Department and by private right of action.
Centro de los Derechos del Migrante applauds the Department for its efforts to strengthen protections for workers in the H-2A temporary visa program. The proposed changes address some of the fundamental flaws in the H-2A program and should be implemented without delay.
We urge the Department to additionally adopt the changes we have recommended, which align with its statutory mandate and policy goals.
Centro de los Derechos del Migrante, Inc.