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Dept. of Labor Issues “Midnight” Regulation Weaking Employment Protection

Brennan Center and Northwest Workers’ Justice Project call for repeal.

December 20, 2008
For immediate release:

Contact: Laura K. Abel, Brennan Center for Justice (212) 998–6737
Michael Dale, Northwest Workers’ Justice Project (503) 730–1706

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

Brennan Center and Northwest Workers’ Justice Project call for repeal

New York, NY – 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.