Mexican guest workers sue local landscaping company, allege abuse of federal H-2B program

Sunday, April 3, 2011 at 10:05pm
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To hear Jacob Horwitz tell it, Hilario Razura Jiménez, a foreign worker plagued by fear that his employer might privately try to deport him — or worse — waited until after midnight one night last August before sneaking off from a property owned by Vanderbilt Landscaping LLC in the small West Tennessee town of Mason. In the darkness, Razura Jiménez made his way to a nearby road and waited beside a bridge for Horwitz to pick him up. This was his “escape.” 

Horwitz, the lead organizer of the Alliance of Guestworkers for Dignity, first got a call from Razura Jiménez about a month earlier, after the guest worker from Mexico called a hotline number off a “know your rights” booklet he’d picked up at the border. Subsequent calls and discussions led to an organized rally at the Vanderbilt Landscaping office in Smyrna the day after Razura Jiménez fled. 

There he, Horwitz and a few dozen others — mostly representing organized labor groups — confronted Vanderbilt Landscaping, demanding the company pay him for his last week of work and return his passport, which he said the company held from him.

Razura Jiménez and those supporting him would go on to claim Vanderbilt Landscaping (which is not affiliated with the Nashville university) conducted forced labor, surveillance and threats, maintained poor living conditions for workers and even engaged in human trafficking. Two weeks ago, Razura Jiménez and 14 other Mexican guest workers filed suit in U.S. District Court for the Middle District of Tennessee against Vanderbilt Landscaping and its principals, Larry Vanderbilt Sr. and Joffrey Vanderbilt. They allege various abuses and violations of civil rights. 

The civil rights of those foreign workers at Vanderbilt Landscaping are protected because all were in the U.S. legally as part of the federal H-2B program, which allows American companies to bring in nonimmigrant workers for what’s supposed to be temporary, mostly low-skill work. But some, such as the workers here who filed suit and the activists standing beside them, say it allows companies to get away with what amounts to indentured servitude. 

 

According to the Department of Labor, the H-2B program allows U.S. employers to apply for non-agriculture labor from nonimmigrant workers to come here on work visas on a “temporary” basis, usually for seasonal work, before returning to their home country. The H-2B jobs run a wide gamut, but the majority fall into lower-skilled work in industries such as forestry, landscaping, hotel services and seafood processing. H-2B employers must advertise in the U.S. before hiring foreign guest workers to fill openings. Employers must also be certified by the Department of Labor to be sure there aren’t enough U.S. workers to fill those jobs. They’re also required to adhere to certain standards meant to protect U.S. workers with similar jobs. 

But Vanderbilt Landscaping allegedly violated most of those rules. Workers claim in the suit that when they arrived in the country under H-2B work visas, Larry Vanderbilt Sr. confiscated those visas and their passports, which company officials allegedly threatened to burn if the workers didn’t comply with
certain rules. 

According to claims in the suit, Vanderbilt managers carried firearms and subjected the workers to surveillance with threats of harm, while forcing them to live in “overcrowded and unsafe” trailers and houses on company property — at either their Mason or Smyrna sites — with company supervisors reporting regularly to the Vanderbilts. The lawsuit claims workers were prohibited from leaving company property except when accompanied by a supervisor, while the Vanderbilts figuratively dangled their legal documentation over their heads, threatening to burn the papers and have the workers arrested or deported. 

The workers claim Vanderbilt Landscaping underpaid them even while it accepted a $900,000 federal stimulus loan and millions of dollars in state contracts with the Tennessee Department of Transportation for highway mowing and litter removal, using the workers as cheap, forced labor through the H-2B program without properly seeking U.S. workers to fill the jobs first. 

But if the workers were here to work legally, why not just walk away from the camps and report the conditions to others? 

Horwitz said for these workers — most of whom don’t speak English or fully understand their protections under the rather obscure guest worker laws — it came down to fear of losing their passports and being deported back home, where they were in debt for the cost it took them to get here in the first place. 

Last July, Razura Jiménez and co-plaintiff Manuel Guerrero Gomez — using information Horwitz was feeding them — began to secretly organize the workers. According to the suit, when Joffrey Vanderbilt caught wind of the clandestine rumblings within the camp, he and other managers “interrogated” the workers, with one manager allegedly holding a gun up over his head and cocking it to send a message. 

Then on Friday, Aug. 6, 2010, according to court filings, Joffrey Vanderbilt and other managers called Guerrero Gomez into an office while the other workers were told to wait outside. There the managers allegedly threatened to burn his visa before Larry Vanderbilt Jr. — who is listed as the company’s human resource officer on its website but is not named in the suit — allegedly took Guerrero Gomez back to the camp to quickly pack his belongings. Vanderbilt Jr. then drove him to the bus station, walked him to the ticket counter, told him to buy a ticket to Mexico with money from his last paycheck and stayed at the station until the bus pulled away, according to the court filing. 

That prompted Razura Jiménez — after he and others had been transferred to the Mason property — to flee the labor camp later that night. Another plaintiff, Refugio Castellon Luna, had previously left the worksite with help from his family after he claims he faced ridicule and harsh treatment for speaking up for his rights. 

David Abraham, professor of Immigration Law at the University of Miami Law School, said as long as workers are in the country legally, they’re entitled to certain rights.

“The right to organize applies to workers of any sort,” Abraham said, “and if they are dismissed because of their efforts to exercise those rights, the National Labor Relations Board time and again has found that is a violation of the law, and the workers are entitled to reinstatement and in some cases to back pay.”

As for putting a worker who is in the country legally on a bus and sending him home, Abraham said an unsympathetic court might say the plaintiff shouldn’t have allowed that to happen. But “a sympathetic court might say that the pressure under circumstances like that is such that the employer pretended to be the government, and that can’t stand.” 

Those in favor of formal guest worker programs to bring in workers to perform unskilled labor insist one of the virtues is that the government would keep employers from abusing workers, Abraham said, but others claim the whole program “is one big abuse.” Those familiar with the H-2B program say similar allegations to those made by the Vanderbilt Landscaping workers are common throughout the country. 

“The case is particularly egregious,” Horwitz said, “not just because of the abuses of the guest workers, but also because of the fact that Vanderbilt was using public money, which could have gone to creating good jobs at a time of unemployment instead of making a profit and trafficking guest workers.” 

As for abuse of H-2B worker allegations, “I wouldn’t say it reflects the experience of most H-2Bs, but it definitely happens,” said Mark Krikorian, executive director of the Center for Immigration Studies. 

“It’s inherent in the guest worker program that the worker is not free labor,” Krikorian said, meaning the workers are in the country at the will of the employer, giving the employer “a significant amount of control.”

“It’s the same concept of indentured servitude in the old days,” he said. “I know comparing it to slavery is provocative, and obviously there’s a fundamental difference, but it’s the same problem of un-free labor.” 

The problem with guest worker programs, Krikorian said, is that the workers are here under the threat — whether explicit or implicit — of deportation at a great personal cost, while citizens or legal immigrant workers at least have the ability to look for another job. This moves the country away from a free-labor model toward a “captive-labor model,” he said. 

“If you think we need more workers … from abroad,” Krikorian said — adding he doesn’t believe that premise — “then they should just be let in with a green card so that they can go and get whatever job they and they can leave whatever job they want — they’re free workers.” 

 

Last week, the U.S. Department of Labor announced that Vanderbilt Landscaping agreed to pay $18,496 in back wages to 42 workers following an investigation by the department’s Wage and Hour Division, which found that the company had violated the Fair Labor Standards Act. The division also hit the company with $18,000 in penalties for violating H-2B rules by placing workers outside the intended employment area, not recruiting U.S. citizens for the work, and misrepresenting the temporary need for the workers. 

Labor investigators also found that the company didn’t reimburse the workers for the cost of visas and transportation into the country, causing their pay to fall below the federal minimum wage. The company is appealing the penalties. 

TDOT, which issued $3.2 million in state contracts to Vanderbilt Landscaping for fiscal year 2011, conducted its own investigation last fall on the heels of the workers’ allegations to determine whether the company had failed to properly pay employees for overtime work. The investigation turned up two “discrepancies” involving workers not listed as plaintiffs in the federal lawsuit. But after Vanderbilt Landscaping responded, “both were resolved shortly thereafter in accordance with TDOT standards,” according to the final report. 

In December, TDOT concluded that for its own review there wasn’t enough evidence to support the allegations. 

Shortly after last August’s rally at Vanderbilt Landscaping, the Tennessee Occupational Safety and Health Administration conducted inspections of both the Mason and Smyrna sites following complaints that workers lived under poor conditions in “labor camps.” Vanderbilt Landscaping managers told TOSHA inspectors that some H-2B workers asked the company to hold their passports for safekeeping. One TOSHA report states: “Responding to allegations that the company refused to provide H-2B workers with their passports upon request, company representatives explained that the Smyrna police took signed statements from the workers stating the opposite.” 

TOSHA initially cited Vanderbilt Landscaping for various violations — one of those deemed “serious” included extension cords not approved for outdoor use (and some spliced together) supplying power from an outlet in a maintenance shop, and running through a ditch, over a driveway and to the four trailers. Other “non-serious” violations included no hot running water in the Mason trailers where the men lived, and cramped living arrangements. 

Jerry Lee, president of the Tennessee AFL-CIO Labor Council, told The City Paper last week that he supports Razura Jiménez because Lee understood the background of abuse in the H-2B system, which he said should be eliminated in favor of “real immigration reform that bases the need for these visas on real numbers.” 

“Without making any accusations … at a time when we had 9.6 percent unemployment in Tennessee, Vanderbilt said it couldn’t find any American workers to do this work,” Lee said. 

Asked if the AFL-CIO favored scrapping the H-2B program because it wants to create more union jobs, Lee replied, “Absolutely not. We’re interested in abolishing the guest worker program because it … typically abuses workers or allows abuse to happen.”

Short of doing away with the H-2B program, its detractors say it at least requires an overhaul. The U.S. Department of Labor took a step in that direction when it proposed changes to the H-2B program three weeks ago. One such change includes increased scrutiny of employer assertions of what kind of effect their hiring H-2B workers would have on the domestic labor market. In support of such a change, the department cited the increased evidence of criminal violations resulting from fraudulent filings. The proposed changes are currently in the public comment phase through May 17. 

Stephen Fotopulos, executive director of the Tennessee Immigrant & Refugee Rights Coalition, said such changes would be good for now.

“We support the proposed changes to the program while realizing that H-2B reform is a stopgap measure at best, serving short-time labor needs of select industries,” Fotopulos said. “It’s part of a bigger picture. Congress needs to fundamentally change the way that people come to this country to live and work, creating a safe, legal and orderly process.”

Horwitz said he was pleased with the proposed changes along with the labor department penalties pending against Vanderbilt Landscaping, but he hopes the department would further act and block the company from the H-2B program. 

Lee said he and others — including representatives from the Alliance of Guestworkers for Dignity and the New Orleans Workers’ Center for Racial Justice, which is providing some legal counsel for the plaintiffs in the Vanderbilt case — were set to travel to Washington, D.C., last week to meet with labor department officials and others to discuss a debarment process that could strip employers of their right to apply for H-2B workers. 

That’s something that hadn’t happened at the time Center for Immigration Studies fellow David Seminara wrote his January 2010 article Dirty Work: In-Sourcing American Jobs with H-2B Guestworkers

“Despite credible allegations and even convictions for fraud and abuse of both H-2B workers and the program in general, neither the Department of Labor nor the Department of Homeland Security has ever barred a U.S. company from filing H-2B petitions,” he wrote. “Some repeat offenders continue to have their petitions approved to this day.”  

9 Comments on this post:

By: Wompcat on 4/4/11 at 5:01

Scrap the H-2B program.

By: wataboutbob on 4/4/11 at 6:54

. . . and do they have the required number of gays/transgenders??

By: GUARDIAN on 4/4/11 at 8:18

GUARDIAN-So after months of investigation by one than one agency the company's only fault was failing to pay enough overtime to 42 aliens on average of $440.38 each. Now they have the rest of their money so send them back to Mexico and send organized labor groups behind this extortion with them.

By: mg357 on 4/4/11 at 10:31

Why on earth would the union be involved in this to begin with? When you look at how many have dropped out of the Hispanic based unions; one would think they'd have more sense than to get involved. With 15 million unemployed in America, common sense should have prevailed and Americans hired for these jobs instead of expressing more money out to another country.

By: global_citizen on 4/4/11 at 11:16

So is it part of the City Paper style guide to now refer to illegal aliens as "guest worker from Mexico"?

Give me a break.

By: govskeptic on 4/4/11 at 12:07

Unions hoping to get members anyway they can, biggest supporters of the Obama
Amnesty Program are the Unions. Landscapers & Construction would prefer to
keep the "Guest-workers" so they can pay them whatever they wish, after all their
Guest! You can tell the seriousness of the Government in these case with the
agreed whopping amount of $18,000. settlement. Slap on the wrist.

By: gigi32 on 4/4/11 at 1:01

Well I am glad they got caught on what they were doing" also to the one who said give u a break? come on!! Stop being a hater. Why can't we all get along and don't forget Mexico is your neighbor country. I am just glad they got caught and now they have to pay for how they treated a human person to start with. Over & Out (The RED WHITE & BLUE IS ALSO MY COUNTRY>>> AND I PROUD TO BE AN AMERICAN. BUT JUST BECAUSE I AM DOES NOT GIVE US THE RIGHT TO TREAT PEOPLE THAT WAY!!!!! (They are Not Slaves) over & out.

By: yogiman on 4/4/11 at 1:29

gigi32,

You apparently only know what you have been told by the "other side". Unless you know the facts, don't make such false accusations.

They may or may not be here legally.

By: gofer on 4/4/11 at 1:42

The only reason they hire them is because they can be taken advantage of....working any and all hours, working cheap and always showing up. They are like slaves of a type. There are Americans doing these jobs everywhere. They won't work for slave wages and be at the call of the employer all the time. They hire a few guest workers, as cover, and then fill in the majority of workers with illegal aliens. The majority of all jobs in this country are filled by Americans and there is no job they won't do.

The problem employers have with these workers is they come into the country legally to work for one employer and then take off and work for someone else if they can get more money. This tends to tick off the employer.