Opportunity and Fairness for Workers
In Brief - The Brennan Center works to ensure access to legal representation and enforcement of labor rights for workers in the United States on H2-B visas and has been involved in efforts to encourage the U.S. government address definicies in access to justice for these guestworkers.
Procedural History - In 2005, a group of temporary workers, in the U.S. on H-2B visas, filed a complaint with the Mexican government through the North American Free Trade Agreement's labor side agreement, the North American Agreement on Labor Cooperation, seeking enforcement of their rights under the treaty. In 2007, the Mexican government responded by posing a set of questions to the U.S. Department of Labor about the legal protections for H-2B workers in the U.S. The Mexican government's response went unanswered by the Bush Administration. The Brennan Center filed a response to Mexico's questions in 2008 and continues to urge the U.S. Department of Labor to respond.
In Detail - On April 13, 2005, sixteen men brought from Mexico, Guatemala and Panama to the United States as temporary workers by United States-based companies filed a complaint under the labor side agreement to the North American Free Trade Agreement (NAFTA) seeking enforcement of their rights under the treaty. The men suffered brutal physical injury, stolen wages, unsafe housing, and other dangerous employment conditions, and were denied access to the federally-funded legal aid they needed to seek redress.
Four additional workers filed an addendum to the original petition on March 29, 2006.
Five U.S. organizations, and six Mexican organizations, have joined the workers’ complaint: Idaho Migrant Council; National Immigration Law Center; Oregon Law Center; Pineros y Campesinos del Noroeste; International Labor Rights Fund; Centro de Investigación Laboral y Asesoría Sindical, A.C.; Frente Autentico del Trabajo; National Union of Workers (UNT); Red Mexicana de Acción Frente al Libre Comercio; Sin Fronteras, I.A.P.; Centro de Derechos Humanos, and El Centro de Derechos Humanos de la Montaña "Tlachinollan" A.C.
The complaint was filed in Mexico City because the formal process set up by the NAFTA labor side agreement, called the North American Agreement on Labor Cooperation (NAALC), requires those alleging violations to petition one of NAFTA’s signatory countries to take up their complaint.
In October 2007, the Mexican government responded to the complaint, asking the United States Department of Labor sixty-nine sets of detailed questions regarding the extent to whcih the workers have access to legal assistance, and the extent to which state and federal laws, courts and agencies protect the employment rights of H-2B workers. The Mexican government also asked the petitioners to submit their own response to the questions. The Brennan Center submitted its response on August 13, 2008.
After the United States Department of Labor and the petitioners respond, Mexico will decide whether to pursue additional mechanisms to ensure U.S. compliance, which could include additional investigations or inter-governmental consulations.
Leaders in Congress have also begun to examine this issue. On April 16, 2008, Representative George Miller (D-CA) delivered testimony before the House Judiciary Committee on the need for improved legal protections for H-2B workers, including access to federally funded legal aid.
On October 27, 2009, the Brennan Center and the Northwest Workers' Justice Project wrote a letter to Secretary of Labor Hilda Solis, requesting that the new Obama Adminsitration respond to the Mexican government's 2007 set of questions related to the employment and labor rights of H-2B workers under U.S. law.
For more information about access to justice for workers in the United States with temporary visas, see a The Gift of Protection and Preserving Aliens' and Migrant Workers' Access to Civil Legal Services by Laura Klein Abel. Also, you can read news coverage of this issue in Daily Labor Report, The Seattle Times, The Sacramento Bee, and Hispanic Link.