If a U.S.-based employer really, really mistreats his or her foreign workers, and if the workers are in the right program, and if authorities both notice and feel strongly about the abuse, the abusing employer can be barred from the foreign-worker program for one year to five — and permanently in one of the rarer cases of a plea agreement.
These punishments are unusual — maybe one a month is handed out per program — and are confined to the H-2A program for farmworkers and the H-2B program for non-ag, low-skilled workers. There seems to be no formal debarment program for other foreign-worker programs, such as H-1B (for college grads), Optional Practical Training, or the various exchange schemes.
I feel that the debarment of employers (and labor agents) is invoked too rarely, but a new angle has arisen in recent years: If a labor abuse case is in the federal courts and if the workers win, the employer or agent can file a plea agreement, and that agreement can cause a debarment of the offending employer.
That’s a useful development, and one we will track. Historically, most, if not all, debarments were the result of administrative decisions made by the Wage Hour Division of the U.S. Department of Labor.
Let’s look at some numbers. The H-2A debarment list currently consists of 43 employers and labor agents. The comparable H-2B list contains 39 names. All those listed are barred temporarily from using the foreign-worker program in question except the two with permanent debarments. The 82 names on the two lists represent a tiny fraction of 1 percent of the users of these programs — a number that I think should be multiplied several times over.
Of the 82 disbarments, 68 are administrative in origin, a dozen are the result of plea agreements, and two others are called “consent decisions”, which may be another term for plea agreements. For a copy of the two lists see here.
The two permanent debarments, one in each of the two programs, were imposed on a small but highly visible North Carolina labor broker, International Labor Management Corporation, eight years ago. As we reported at the time, ILMC had a long list of various ways it had cheated foreign workers successfully for years; the actions against the firm were part of a plea agreement.
Debarments used to be only one or two years in length; in more recent years, the upper limit was moved to five years. Getting the five-year treatment recently, via a plea agreement, was the Hong Kong-owned Imperial Pacific Casino in the Commonwealth of the Northern Mariana Islands. Its labor practices included such major sins as taking a badly injured construction worker to the hospital naked, as his clothes would identify him as working for the casino, putting another injured worker on a plane back to China, and such minor sins as breaking their word to Turkish workers that they would get Turkish food; they had to eat Chinese like the rest of the workforce.
Unfortunately, DoL has decided that only the very worst of the worst should be debarred from its foreign worker programs. It should change the system so that the worst of the worst, not the very worst of the worst, should be so treated.
In the meantime, lawyers for abused foreign workers have a relatively new technique to use against exploiting employers that they have sued: force them to sign away their access to H-2A or H-2B programs as part of an overall settlement.