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Taken for a Ride Migrant Workers in the US Fair and Carnival Industry

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Taken for a Ride Migrant Workers in the US Fair and Carnival Industry TAKEN FOR A RIDE Migrant Workers in the U.S. Fair and Carnival Industry Kathryne Winkler, Constructing a Carousel (2011). Winkler, Kathryne TAKEN FOR A RIDE Migrant Workers in the U.S. Fair and Carnival Industry February 2013 About the Authors American University Washington College of Law Immigrant Justice Clinic The Immigrant Justice Clinic (IJC) is one of 11 law clinics within the Clinical Program at American University Washington College of Law (WCL). WCL’s work on behalf of this report was undertaken primarily by students enrolled in IJC. The Clinical Program is designed to give students the opportunity to represent real clients with real legal problems, to handle litigation from beginning to end, to explore and address pressing legal issues with institutional clients, and to learn lawyering skills at both a practical and theoretical level. Student Attorneys enrolled in IJC work in teams under the supervision of a full-time faculty member and handle a broad range of cases and projects involving immigrant communities in the Washington, D.C. metropolitan area. IJC is structured so as to develop in students the skills and values needed to be effective immigrants’ rights practitioners and respond to the unmet legal needs of the client community. As is true of this report, many of the matters handled by IJC reside at the intersection of immigration and employment law and have a transnational dimension. Other cases and projects handled by IJC have included the following: the representation of detained immigrants with criminal convictions; the representation of domestic workers seeking wage recovery and immigration relief; and advocacy work related to language access to social services in Washington, D.C. Centro de los Derechos del Migrante, Inc. Centro de los Derechos del Migrante, Inc. (CDM) is a transnational non-profit organization dedicated to improving the working conditions of migrant workers in the United States. Rachel Micah-Jones founded CDM in 2005 based on the premise that justice should transcend international borders and all workers should have access to justice, no matter their immigration status or location. In order to bring rights education and legal representation to workers in their home communities and in the U.S., CDM has offices in Mexico City and Oaxaca, Mexico, and in Baltimore, Maryland. With locations on both sides of the border, CDM has developed an innovative approach to legal advocacy and organizing that engages workers in their communities of origin, at the recruitment site, and at their places of employment in the U.S. Believing that the border should not be a barrier to justice, CDM ensures that when workers return home, they can enforce their rights. ii TAKEN FOR A RIDE Migrant Workers in the U.S. Fair and Carnival Industry Acknowledgements This report is a collaborative effort of the Clinical Program of American University Washington College of Law and its client, Centro de los Derechos del Migrante, Inc. The authors of this report benefited from the funding, research assistance, and contributions of several individuals and organizations in the U.S. and Mexico. In particular, the authors would like to thank Dean Claudio Grossman for his generous support of this project. CDM would also like to thank the Ford Foundation, the General Service Foundation, the New World Foundation, the Public Welfare Foundation, the Skadden Fellowship Foundation, the Solidarity Center, and the John D. and Catherine T. MacArthur Foundation, without whose generous support this project could not have been undertaken. The following current and former WCL Clinical Program students contributed substantially to this report: Xavier E. Albán, Angela Bouliakis, Daniela Cornejo, Lucia Macias, Carson Osberg, Anne Schaufele, Ann Capps Webb, and Emily O’Neill Zavala. These students were supervised by Professors Elizabeth Keyes, Jayesh Rathod, and Anita Sinha. CDM thanks staff and volunteers for their support during different phases of this project, including: Brenda Andazola Acosta, Julia Coburn, Maria Sofia Corona, Josh Elmore, Sarah Farr, Victoria Gavito, Lelia Gomez, Lilian López Gracián, Laura Gutierrez, Kristin Greer Love, Lisette Martinez, Elizabeth Mauldin, Rachel Micah-Jones, Rachel Nathanson, Carson Osberg, Mónica Ramírez, Sarah Rempel, Zafar Shah, Silas Shawver, Jessica Stender, Miriam Tauber, Ann Capps Webb, and Elizabeth Wilkins. Above all, the authors thank the workers who graciously agreed to be interviewed for this report. TAKEN FOR A RIDE Migrant Workers in the U.S. Fair and Carnival Industry iii Table of Contents About the Authors . ii Acknowledgements . .iii Executive Summary . .vi Major Themes . vii Key Recommendations . x Introduction . 1 I. The Traveling Fair Industry and H-2B Workers. 3 H-2B Worker Program . 5 Reliance on H-2B Worker Labor in the Fair Industry . 7 Interstate Routes. 9 II. Labor Recruitment for Traveling Fairs and Carnivals: Country Conditions and Industry Practices that Disadvantage H-2B Workers . 11 Economic Conditions in Mexico. 12 H-2B Worker Recruitment . 14 Concentrated Power in the Hands of Few Recruiters . 18 III. Wage and Hour Abuses. 20 Underpaid & Overworked . 22 Limited Access to Justice . 25 Inadequate Enforcement and Oversight . 27 IV. Workplace Health and Safety Violations and Abuses . 29 Inadequate Training and Safety Equipment Yield Frequent Injury. .31 H-2B Worker Health & Lack of Access to Medical Care in the Traveling Fair Industry. .33 Difficulties in Obtaining Workers’ Compensation . 35 Unsanitary and Substandard Housing Conditions . 37 Discrimination . 40 V. Retaliation . 42 iv TAKEN FOR A RIDE Migrant Workers in the U.S. Fair and Carnival Industry Conclusion and Recommendations. .45 Methodology . 48 Sample Interview in English . 50 Sample Interview in Spanish . 52 Appendix A: H-2B Labor Certification and Visa Application Process . 54 Appendix B: Fair Employers’ 2012 H-2B Labor Certification States and Their Fair Routes . 56 Appendix C: DOL 2011 H-2B Labor Certifications and Associated Labor Agents. .58 Appendix D: Side-By-Side Comparison of 2009 and 2012 H-2B Regulations. .62 Endnotes . 69 TAKEN FOR A RIDE Migrant Workers in the U.S. Fair and Carnival Industry v Executive Summary Samuel Rosales Rios came to the United States from enhance H-2B worker protections, while a step in the Mexico as a temporary worker under the H-2B guest- right direction, are currently stalled due to employer- worker program1 only to be treated by his employer driven litigation. As a result of inadequate government not as a guest, but as a near-slave.2 Samuel was permit- oversight and enforcement of existing laws, coupled ted to enter the U.S. and work legally on a temporary with workers’ limited access to exercise their rights seasonal basis for the employer who had sponsored by filing complaints regarding employment and health his work visa, the operator of a Greek food stand at a and safety violations, employers continue to bring state fair.3 Samuel and his coworkers were forced to workers to the U.S. and place them in deplorable work work between 16 and 17 hours per day for many days and living conditions with almost absolute impunity. in a row in temperatures that sometimes reached over While Samuel’s employer faced legal consequences,10 90 degrees Fahrenheit (over 30 degrees Celsius).4 The many more violations of fair and carnival workers’ workers lived in poor housing and sometimes earned basic rights are never reported or enforced. Too many as little as $1 USD (approximately 13 MXN) per hour,5 workers like Samuel are taken for a ride. despite being promised an hourly rate of $10 to $12 USD (approximately 129 to 154 MXN)6 and decent liv- Based on interviews with H-2B workers in Maryland, ing conditions.7 Samuel received so little pay that he Virginia, and Mexico, this report sheds light on the could not afford to buy additional food to supplement abuses that fair and carnival workers face. Such the single meal his employer provided, leading him to abuses include deceptive recruitment practices and suffer dehydration and hunger during his long shifts.8 high pre-employment fees and costs; wage theft; lack After several days of sleeping in an overcrowded, bed- of access to legal and medical assistance; substan- bug and flea-infested trailer, and without an adequate dard housing; and unsafe work conditions. The fair and place to bathe, Samuel eventually sought treatment in carnival industry epitomizes what is currently most an emergency room for dehydration and infections problematic with the H-2B temporary worker program, from bug bites.9 as employers are often able to mistreat their workers and claim exemption from basic worker protection Samuel and his coworkers’ experiences are illustra- laws with very little scrutiny. This report provides tive of the appalling work conditions H-2B workers in recommendations that would rectify H-2B worker the fair and carnival industry often face. These work- mistreatment through means such as comprehensive ers are vulnerable to unfair employment and labor immigration reform, agency rulemaking, and enforce- practices in part because their visas only authorize ment of existing laws. Fixing the H-2B program would them to work for the employer who sponsored them, not only help foreign temporary workers: all workers and also because they often arrive in the U.S. with a in the U.S. benefit when the rights of a specific group debilitating pre-employment debt. Recent attempts to of workers are enhanced and enforced. vi TAKEN FOR A RIDE Migrant Workers in the U.S. Fair and Carnival Industry H-2B workers, uniformed in blue work shirts, ready the midway for a busy Saturday. Photo: Carson Osberg Major Themes discriminated against by an employer or labor recruiter. Additionally, the recruitment process This report highlights H-2B worker abuse in the fair often requires workers to incur substantial and carnival industry, including: pre-employment and/or pre-departure costs, • Unfair recruitment processes.
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