DOL Judge Makes the Right Ruling on Sleazy H-2B Carnival Operator

By David North on June 6, 2014

Carnival operators and circus managers are not noted among the best employers in the land, and an administrative law judge in the Department of Labor has just lowered the boom — finally — on one that has been badly misusing the H-2B program.

That is the program that allows U.S. employers to bring unskilled, non-farm workers to the United States temporarily from other nations. Think of landscape and forestry workers, cooks, and, in this case, carnies.

As with many nonimmigrant worker programs, these foreign workers are often ill-paid and badly treated; in the case of the traveling carnies they have the special disadvantage of constant movement from place to place and being forced to live in their employers' portable housing. The cheap wages allowed by the program discourage the hiring of American workers.

Commendations go in this instance to one of the faceless officials who are rarely recognized; this time it is Department of Labor Associate Chief Administrative Law Judge William S. Colwell. The full decision can be seen here.

Non-commendations, if there is such a word, go to Midway Rides of Utica. Midway filed an application for H-2B workers in 2011 and its misuse of the program began in September 2012, as the following (abbreviated) chronology indicates:

  • 9/12: DoL tells employer to provide earnings records;
  • 9/12: Midway provides some of the records, but not all, saying it was on the road;
  • 10/12: DoL extends deadline for records submission;
  • 12/12: Midway does not submit wage records;
  • 1/13: DoL repeats demand for wage records;
  • 1/13: Midway asks for more time to gather records, claims illness, DoL agrees;
  • 6/13: With no records submitted, DoL again demands their submission;
  • 9/13: Having received nothing from the employer, DoL sends debarment notice;
  • 3/14: Judge holds conference call on the issue; issues show cause order;
  • 4/14 Midway seeks (an unusual) oral hearing on debarment; and
  • 5/14: With earnings records still not provided, Judge Colwell denies the hearing.

Meanwhile, from October 2, 2013, to October 1, 2014, Midway was, and is, debarred from using the H-2B program.

While I applaud the judge's ruling, I have two concerns. One: Why not two years, instead of one? Some debarments are two years long.

And, two: Why is the debarment list such a short one, including as it currently does, only 22 names nationwide?

We have noted earlier that DoL often plays the role of paper tiger when it comes to enforcement of immigration law, particularly as it seriously under-uses its ability to ban badly behaving employers from the list of those permitted to participate in the various H temporary labor programs (H-1B, H-2A, H-2B).

Apparently, only the worst of the worst are regarded as deserving of the (mind you) temporary non-use of these programs.

Earlier, I said something about the general reputation of carnivals and circuses as employers. This image is reinforced by the fact that one of the other debarred H-2B employers is Myers International Midways, Inc., of Gibsonton, Fla., which cannot use the program from March 7, 2014, through March 6, 2016. That two on the list of 22 are both in the extremely narrow business of running carnivals is more than a coincidence.

Meanwhile, many years ago, before, in fact, the fall of the Berlin Wall, the New York Times ran a detailed expose of how Ringling Brothers had used a predecessor program, H-2, to hire circus roustabouts from Soviet Russia (for below-par wages) and had also hired a Communist Party agent, from the USSR, to serve as their supervisor.

Both Ringling Brothers and the Department of Labor were embarrassed and promised change.

There was, in fact, a change: The next year those workers were recruited from then-Communist Bulgaria.