During an Unprecedented Economic Downturn, Dept. of Labor Issues 'Midnight' Regulation Weaking Employment Protection

Today, the Bush Administration, in one of its final acts of
rulemaking, published a regulation undercutting key protections for
working people. The regulation will make it easier for employers to use
the H-2B visa program to recruit and employ vulnerable workers from
other countries to fill temporary non-agricultural jobs, and to exploit
those workers once they are here. "The regulation exacerbates existing
flaws in the H-2B program and will hurt U.S. and visiting workers."
says Michael Dale, Executive Director of the Northwest Workers' Justice
Project. "Rising unemployment and falling wages make it more urgent
than ever that Congress and the new administration fix the H-2B
program."

Some employers prefer workers on temporary visas who are unable to
enforce their legal rights: the workers are ineligible for federally
funded civil legal aid, unfamiliar with the U.S. legal system,
generally do not speak English, and can be deported if they leave an
abusive employer. The new regulation will make it easier for employers
to hire these workers instead of qualified, unemployed U.S. workers.
Among other things, employers will no longer have to prove compliance
with the program's key requirements-that they have attempted to find
U.S. workers to fill the jobs, and that the wages they will pay the
H-2B workers will not undercut the wages U.S. workers receive for doing
similar work. Instead, employers will be able to merely attest that
they have taken these steps.

Visiting workers, too, will be harmed, because employers will be able
to lure them to this country with false promises of better wages and
working conditions. The new regulation will give the federal Department
of Labor (DOL) the task of reviewing employers' applications, taking it
away from state-based agencies able to use their knowledge of their
local labor markets to determine which of the employers' promises are
unrealistic. DOL will be less able to do so.

Although the regulation purports to strengthen DOL enforcement
regarding the treatment of workers already in the country, DOL has
never had the resources to enforce the terms of temporary worker
programs. "To protect U.S. and visiting workers, Congress must enact
comprehensive immigration reform. In the short term, it must allow H-2B
workers to leave abusive employers and provide H-2B workers with access
to attorneys to protect themselves from exploitation," says Laura Abel,
a Deputy Director at the Brennan Center for Justice at New York
University School of Law.

The Brennan Center and Northwest Workers' Justice Project represent
a group of H-2B workers, and organizations in the U.S. and Mexico,
arguing that by turning a blind eye to ongoing exploitation of H-2B
workers, and denying them access to federally funded civil legal aid,
the U.S. violates a labor side agreement to the North American Free
Trade Agreement. Although the Mexican government "took up" the workers'
complaint a year ago, asking the U.S. to explain its treatment of H-2B
workers, the U.S. DOL has never responded. Information about the
complaint and Mexico's involvement are available by clicking here.