I. Introduction
In 1945, Edward Forbes, a Jamaican labor migrant working in a Connecticut foundry, pulled a knife on a fellow employee on the shop floor. His employer sought to terminate him. To do so, company representatives had to appear, alongside the worker, in front of a local administrator of the US Employment Service (USES), a government agency within the larger War Manpower Commission (WMC).Footnote 1 The company argued that the worker's behavior was a violation of company rules, and that it no longer wished to employ him. However, Forbes did not want to be deported and forcibly repatriated to Jamaica, a possible consequence of employer termination. The agency administrator reviewing the worker's wartime migrant labor contract concluded that: “The worker has requested an opportunity to prove to another employer that he is a good and conscientious worker and that this incident will never occur again.”Footnote 2 The official subsequently found another company in Connecticut to hire Forbes.
The administrative determination in the case of Edward Forbes illustrates how, under the wartime migrant labor program: (1) only USES administrators held the authority to dissolve the original work contract; (2) the worker was not repatriated after termination; and (3) local administrators assumed the task of finding the worker alternative employment at another locale at his request.
Some sixty years later, in 2005, Marcos Sisfontes, a labor migrant from Costa Rica working in the United States on an H-1B work visa, filed a case against his employer, International Business Software Solutions (IBSS), protesting his termination. Sisfontes claimed that his employer had retaliated against him on account of his participation in a Department of Labor (DOL) wage investigation at the firm. In his complaint, Sisfontes claimed that he should be protected under whistleblower protections and requested that the DOL “solve this problem, and help me protect my legal status since I am a victim.”Footnote 3 The WHD administrator awarded Sisfontes unpaid wages for underpayment while he had worked for the company, but did not consider his termination challenge. In contrast to Edward Forbes's case six decades earlier, the administrator did not seem concerned with the fact that if Sisfontes could not find another visa sponsor, he would lose his legal status to remain in the United States.
When placed alongside one another, these two cases raise a question about the impact of employment rights and legal processes at termination upon deportable labor migrants. Both Forbes and Sisfontes held temporary employer-dependent work permits, such that employment termination implied a loss of legal status in the US labor market and possible deportation. Yet, clearly, they negotiated their status within very different legal frameworks when contesting their dismissal and encountered variable outcomes, suggesting that the legal regulation of employment termination has shaped and continues to constitute the meaning of deportable labor over time and across sectors. This article examines changing rights and legal processes at termination in an effort to understand and explain their impact on migrant workers' capacity to navigate their restricted status, resist forced repatriation, and remain working in the US labor market.
By analyzing changing migrant employment termination laws, this article makes two contributions to the study of deportable labor.Footnote 4 First, I develop the point that the meaning of deportable work status, like that of the citizen's, cannot be understood independently of rights at work.Footnote 5 As sociolegal scholarship has long argued, it is the form of the law and law in action that constitutes power relations in economy and society, including the workplace (Pound 1910; Tomlins 2010).Footnote 6 Immigration scholarship has, to date, largely neglected the intersection between deportable labor and workplace rights, as it has not considered the history and regulation of migrant employment relations via the legal system as a site where the meaning of deportation in the labor process has been made in action.Footnote 7 Certainly, scholarship on the role of immigration law in the workplace has shown how, contemporaneously, variable enforcement priorities, the exercise of prosecutorial discretion, and new visas, such as the T and U visa programs for workers who have been victims of work-related crimes, may protect some migrant workers from removal (Stumpf Reference Vorenberg2006; Lakhani Reference Montgomery2013; Abrego and Lakhani Reference Abrego and Lakhani2015). However, the converse impact of workplace rights on deportable labor status has been relatively neglected, meaning that we do not understand how labor and employment rights mediate forced repatriations before any deportation proceeding commences. Second, contrary to existing monographs on the history of deportable labor, which link increased migrant vulnerability in the contemporary economy to the state's retreat from transnational labor migration management, I analyze the comparative impact of old and new laws and processes upon deportable workers (Hahamovitch Reference Jessop2012). For, it is not simply that the state retreated from migrant administration; rather, legal frameworks and processes have differed across periods, with consequences for migrant vulnerability today.
While I only analyze deportable temporary migrant labor, that is, “legal migration,” across time and sectors in this article, my focus on deportable labor in conjunction with workplace rights also applies to the newer and larger undocumented labor regime under contemporary capitalism. Largely a contemporary effect of the retreat of the state from organizing transnational migration, in addition to border securitization, undocumented labor now also exists as a site of legal development under immigration, labor, and employment laws.Footnote 8 The exclusive focus here on deportable temporary migrant labor is driven by the fact that, unlike undocumented labor, the status has a long history dating to 1917 in the United States.Footnote 9 Moreover, temporary labor migration is always at the center of proposed immigration reforms, as Congress endeavors to expand agricultural and professional temporary visa programs in the name of regularizing the undocumented and attracting the best and the brightest to the United States.Footnote 10 Historical analysis therefore illuminates points for legal reform beyond the common calls for increased visa portability and stronger guestworker rights.Footnote 11 For, I show, more specifically, how it is the kind of workplace rights and legal processes that have shaped migrant power and vulnerability over time and across sectors.
Ultimately, however, this article is also a contribution to the wider understanding of the role of the state in labor markets under modern liberal capitalism, from the late nineteenth century to today's post-Fordist and neoliberalized service and knowledge-based economies, one that places the rights and legal processes governing temporary migrant labor at the center of its analysis.Footnote 12 As Section II explains, we already know that governments, including that of the United States, have used temporary migrant labor to intervene in the economy in response to modern capitalist transformations across regulatory periods. In so doing, governments constructed a novel legal form of coercion in the labor process across time and sectors, deportation, while also segmenting work by citizenship and race.Footnote 13 Temporary labor migration, moreover, has been consistent with mid-century state-led economic planning and transnational migration, as well as the contemporary state retreat from governing economy and society, including the migration of workers across borders. Yet, as I argue in this article, we do not understand how migrant workplace rights and the legal processes have defined the meaning of deportable labor status differently across regulatory periods. Section III therefore analyzes and compares the intersection between deportable temporary migrant labor status and workplace rights under both state-led and privatized migration in one migrant-receiving polity, the United States, opening up a space for similar legal historical analysis elsewhere.Footnote 14
My findings ultimately direct us to a new understanding of contemporary state transformation and migrant vulnerability across sectors today. Scholars of the new capitalism and deportable labor alike have, to date, highlighted the rollout of coercion across labor processes and the rollback of state protections in the contemporary economy (Jessop Reference Lewis2007; Clark Reference Clark2015). However, in contrast, I show that while the coercive power of deportation has spread across sectors, new rights and legal processes leave workers more vulnerable to employer coercion under contemporary capitalism than ever before. In this way, my findings complement current sociolegal research on citizen labor. As the law of collective bargaining enforced primarily by the administrative National Labor Relations Board (NLRB) has become less relevant at work with the demise of US labor unions, employment rights have unfolded as a site of regulation in the economy under new statutes enforced by administrative agencies and the courts.Footnote 15 Yet, as scholars currently argue, new rights are both narrow and difficult to enforce in practice, leaving not only citizen workers, but, as I will show, migrant workers, more vulnerable to employer control from agriculture to the knowledge economy. The history of deportable labor is thus not only one of regulation, coercion, noncitizenship, and race across time and sectors, but one of law.
II. Deportable Labor Under Modern Liberal Capitalism
An undertheorized fact in the history of capitalism is that the deportable temporary labor migrant, tied to an employer by law, is the restricted and racialized, yet rights-bearing, worker born uniquely of modern liberal capitalism. Deportable temporary labor status arose from a plurality of political economic contexts at the close of the nineteenth and early twentieth centuries, as the expansion of seasonal and casual labor needs under global capitalism intersected with free labor politics, the demise of what has been called the “global age of indenture,” and new citizen labor demands for restrictionist immigration policies in industrializing nation-states (Northrup Reference Scruggs1995; Hahamovitch Reference Jessop2012).Footnote 16 The new legal status allowed governments to provide employers labor on demand, while placating nativist citizen workers who feared domestic competition from “unfree” labor and permanent immigrants alike. So central to modern state policy was temporary migrant labor that, by mid-century, countries such as France and Germany had established state-run guestworker programs. Today, on the other hand, the status has gone global as employers, from Europe to the Arab Gulf, seek greater control over workers in markets increasingly characterized by unpredictable and short-term labor needs across low-waged and high-skilled sectors (Menz Reference Northrup2009; Anderson Reference Anderson2010; Hanieh Reference Kanstroom2011). Coercion in the labor process in the form deportation has thus been at the heart of modern liberal capitalism, past and present.
The history of temporary labor migration in the United States has thus hardly been unique. The US Congress first created the status in law under the Ninth Proviso of the Immigration and Nationality Act in 1917 in response to employer demands for access to foreign workers in industries characterized by seasonal and casual labor, including southwestern agriculture, railroads, and mining, as well as southeastern agriculture and the northeastern lumber industry. The free labor politics of US labor groups, such as the Knights of Labor and the Federation of Organized Trades and Labor Unions (FOTLU), had, since 1885 and under the Foran Act, succeeded in restricting employer access to migrants whose passage to the United States employers had prepaid, many of whom were racialized subjects working under contract at the nation's borders. The nativist argument was that prearranged debt contracts constituted unfair competition and debased labor market standards for US workers (Calavita Reference Calavita1984).Footnote 17 Yet, at the same time, the status was also the result of a new state labor market regulatory project to manage local labor supplies across labor markets. Beginning in 1917, a Progressive-era vision to have a government agency dedicated to fixing the mal-distribution of workers across national space found fruition with the US Employment Service (USES), a new subagency under the Secretary of Labor's authority (Breen Reference Breen1997). Thus, when the Commissioner General of Immigration sought the approval of the Secretary of Labor to allow the entry of foreign labor from Mexico, the Caribbean, and French Canada into the United States temporarily during World War I under the new Ninth Proviso, the decision rested on data gathered by the USES.Footnote 18 Unlike unregulated or family-based migration, then, which has constituted the bulk of immigration to the United States, temporary labor migrants' status has, from the beginning, been employer dependent and based on deportation because their admission is tied to a specific shortage of manpower in a local labor market.Footnote 19 In 1917, federal immigration policy thus forged what Tomlins has called a “zone of exception” after slavery in the United States, that is, a new form of coercion in the labor process (Tomlins 2010, 510).Footnote 20 This order has primarily governed racialized foreign workers and continues to do so today.Footnote 21
Since the initial admission of deportable migrants in 1917, the United States, like states elsewhere, has organized foreign temporary labor under two frameworks: a state-driven order forged under bilateral international labor agreements and characterized by state-led transnational labor contracting, and a regime based on privatized migration. Under state-driven migration, which ran from 1942–1964, the United States not only recruited migrants abroad, transported them across borders, and received and contracted workers in the interior of the country, but also agreed to foreign governments' demands that it serve as each migrant's primary employer. This meant that the US government not only signed bilateral international labor treaties, but it also guaranteed each migrant labor contract prior to subcontracting an individual to a private employer. Although originally a demand made by Mexico's foreign minister in 1942, the Bahamas Islands and Jamaica insisted on this very same template in March and April 1943, as did Newfoundland, Barbados, and British Honduras in 1944 (Scruggs Reference Steinfeld1960). Privatized migration, on the other hand, is based solely on employer-driven migration and private employer-migrant employee contracts and workplace relations. The US government merely approves visas based on labor market statistics and employer petitions for foreign workers.
Both state-run migration and contemporary privatized migration have institutionalized the connection between labor market regulation, deportation, and racialized work established during World War I across agriculture, service, and knowledge sectors. From 1942–1947, for example, when employer demands for foreign labor surfaced as the US economy prepared for war, US agencies established by President Roosevelt to organize labor markets according to wartime production goals, such as the War Manpower Commission (WMC) and the War Food Administration (WFA), developed an economy-wide employment stabilization plan that included a “supplemental” temporary migration program to relieve manpower shortages in the name of labor market planning. Since migrants were “supplemental” to domestic placements, the program had the effect of rationalizing the migration of black Caribbean migrants, Mexican laborers, and Canadian “Cannucks” into the lowest-paying jobs in the wartime economy (the jobs citizens had left for higher wartime wages). Given that government agencies organized production and assumed the role of transnational labor contractor during the war, the state also used deportation to enforce migrant work across these lower-level jobs in agriculture and industry at this time. The deportation of striking, slow, or any other migrants who “refused to work” became a regular state practice, especially given that each of the 220,640 migrant workers had signed a contract with the US government to provide “diligent labor” to employers for each contract's duration, a stipulation that included a no-strike clause. Although war demobilization included the dismantling of the WFA and WMC and the retreat of the state from labor market planning, the intersection between labor market regulation, deportation, and racialized work persisted under the state-led Mexican American “Bracero” program until 1964 in agriculture. By 1951, overrun border towns, a rising undocumented farm labor force, and increased worker desertions on account of deteriorating wages and labor conditions in the Southwest created political momentum in Congress to return to government-run migration (Calavita Reference Calavita1992). Not only did western agriculture therefore become wholly segmented from other jobs by citizenship and race, as up to half a million migrants entered and exited the fields each year, deportation continued to be a useful disciplinary tool to repatriate migrant workers who struck or otherwise “refused to work.”
Congress only ended the Mexican American “Bracero” program under influence from the AFL-CIO, various Chicano groups, and other community organizations that argued in 1964 that the program harmed low-income domestic farm workers.Footnote 22 However, temporary labor migration had not been abolished in law. In fact, Congress had normalized the temporary labor migrant status as permanent in immigration law in 1952 (separate from the Bracero program) under what was now called “nonimmigrant alien” H-2 work, creating a route for employers to recruit migrants privately with state approval. Until the 1980s, the DOL restricted employers' access to temporary foreign workers in all sectors save the sugar industry in South Florida and fruit orchards in the Northeast in the name of citizen full employment and the war on poverty. The DOL only allowed “Big Sugar” to import Jamaican workers into South Florida in order to build the industry following the Cuban Revolution, when Congress lifted a twenty-six-year restriction on domestic sugar production (Hahamovitch Reference Jessop2012). The harvest cycle in the Northeast fruit orchards, on the other hand, complemented sugar production, allowing Jamaican laborers at least six months of work each year (Semler Reference Steinfeld and Engerman1983). The program thus remained a relatively small aspect of state labor market regulation, as employers only imported around 10,000 workers annually. However, the 1952 immigration reforms had also created another “nonimmigrant” visa for the first time ever, the H-1 visa for the “exceptionally talented” to provide temporary services in the “national interest” (Senate Judiciary Committee Report 1515 Reference Stumpf1950, 588–90). While the H-1 visa also remained a very small program until 1970, both the H-2 and H-1 visas have facilitated the spread of deportable labor across sectors in the contemporary economy.Footnote 23
Since the 1980s, Congress has expanded employers' access to temporary labor migrants in agriculture, service work, and the knowledge economy in the name of border securitization, local labor market shortages, and attracting the best and the brightest to the United States. In consequence, the coercion of racialized foreign workers has also expanded across sectors, as it has globally, serving neoliberal and post-Fordist transformations in low-waged and higher-skilled occupations alike. Congress first guaranteed growers outside of the sugar and fruit industries access to temporary labor migrants in return for their support of an undocumented legalization program in 1986. By 2010, employers in all fifty states had moved to hire H-2A migrants, with employers in North Carolina, Louisiana, Kentucky, and Georgia making up the largest share of the 80,016 migrant labor force (Farmworker Justice Report 2006). At the same time, Congress and the DOL have allowed employers in seafood processing, hospitality, and landscaping to increasingly turn to temporary labor in low-waged nonagricultural sectors under the H-2B visa. While seafood processors significantly casualized their workforce in response to global competition and plummeting demand for canned food in view of cheap fresh options, hotels first began using Jamaican chambermaids in the late 1980s (Griffith Reference Holley2006). Gentrification had transformed the need for seasonal low-wage hotel service in ways that the domestic labor market could not accommodate under current conditions.Footnote 24 The recent growth of large national service landscaping firms, on the other hand, has been enabled, in part, by access to H-2 labor; 94 percent of temporary agricultural workers now come to the United States from Mexico, and 85 percent of H-2B workers migrate from Mexico, Jamaica, and Guatemala (GAO Reference Hanieh2015).
Privatized migration has increased most in the knowledge economy, however. Today, an estimated total of 900,000 professional labor migrants work in information technology, the health care industry, and higher education. The growth has been a result of business lobbying for increased access to global talent since the 1970s, as well as the predominance of decentralization and subcontracting in the knowledge economy.Footnote 25 As a Government Accountability Office (GAO) report noted, in 2002, among the ten top firms sponsoring H-1B workers, eight were labor-staffing firms providing short-term professional labor to larger corporations on demand. Like H-2 work, moreover, the H-1B visa is now segmenting the US knowledge economy by citizenship and race, given that workers employed by labor contractors are principally from India and China (the government allocated 67 percent of H-1B visas in 2011 and 71 percent in 2012 to workers from these two countries) (USCIS 2013).
Scholars and labor activists have already noted how guestworkers globally, and in the United States particularly, “are more easily exploited than ever before,” (Hahamovitch Reference Jessop2012, 4–5) as workers' employer-dependent status and the threat of deportation produces abuse and violations of contractual standards across sectors (Farmworker Justice Reference Fisk, Wishnie, Cooper and Fisk2006; Southern Poverty Law Center 2013). Hahamovitch (Reference Jessop2012) has attributed this loss of power to state retreat from migrant labor administration, while Ness (Reference Raghunath2012) has suggested that temporary labor migration is a liminal zone without law. Although the latter claim is incorrect, this article builds on Hahamovitch's view and offers a more specific account of migrant vulnerability linked to changing workplace rights and legal processes. The history of deportable labor, I argue, is tied to the form and administration of workplace rights under both state-led and privatized migration. Below, I focus on migrant employment termination under both frameworks, as it is here that deportable labor status has been negotiated in law. As we will see, today's rights and legal processes, in contrast to the past, hardly mitigate employer control over temporary migrant status. Given that the rights and processes govern agriculture, service, and knowledge workers alike, we come to understand how the new legal order is a constitutive feature of employer power under contemporary capitalism.
The historical analysis and findings below are based on qualitative interpretation of employment cases from the archives of the WFA, WMC, and the Bureau of Employment Security (BES) in San Francisco, California, in the period of state-led migration (1942–1964). For the current period, I consulted court decisions and unpublished Department of Labor (DOL) files made available to me under FOIA.Footnote 26 My reported findings of contemporary administrative processes are based on a qualitative analysis of all termination cases filed between 1990 and 2010 in the docket of 171 cases I examined under the FOIA grant. Court decisions interpreted below represent all the cases concerning the termination of H-2A, H-2B, and H-1B workers available on WestLaw. While termination cases are abundant in the period of state-led migration, as each migrant worker received an administrative review at the end of his or her contract, termination cases today are more rare. For, in contrast to the past, government agencies no longer review terminations as a routine administrative practice. Workers instead must file specific complaints based on a narrow set of protections with administrators or in court. As I argue below, this distinction is central to how law has mattered to the meaning of deportable status across periods.
III. Employment Termination From State-Led to Privatized Migration
A. 1942–1947
When the governments of Mexico, the Bahamas Islands, Jamaica, Newfoundland, Barbados, and British Honduras insisted upon US state involvement in managing labor migration during World War II, there were significant consequences for migrant labor rights. Given that under the bilateral international labor treaties, the US government had agreed to be the primary employer of each migrant, it also became the guarantor of each worker's contract. Following international negotiations, the WFA and WMC drew up standard contracts defining the rights and obligations between the US government and migrant, the “Contract for Employment and Transportation Agreement,” and each employer and worker.
Governmental guarantee of the migrant labor contract ultimately meant that all rights defined under its provisions became entitlements that the state could not take away without due process of law. These rights included a migrant's right to work for three-quarters of the contractual period or to receive a subsistence wage (equal to the minimum wage guarantee of 30 cents per hour for 10 hours) from the US government and a right to paid transportation costs. The right to work or to be paid as if working addressed a known problem especially associated with seasonal and cyclical work: the absence of enough employment. While we generally think of government regulations as a set of standards limiting the amount of work employers can demand, these protections developed in relation to an industrial labor movement at the core, not periphery, of mass production. In contrast, under the wartime migrant labor contracts, the United States was liable to workers if employers reneged on the contractual guarantees, migrant entitlements to be determined via due process hearings in the WFA or WMC, depending on whether the contract was agricultural or industrial. For the Supreme Court had held in Morgan v. United States (1938) that due process in the administrative state included the right to be heard and to present evidence at an administrative hearing when agency action impacted private rights.
Given governmental guarantee of the migrant labor contract and the culture of due process in the administrative state, it follows that an employer's right of dismissal, the prerogative to terminate a contract and induce forced repatriation, was mediated by hearings in agencies responsible for labor regulation. As a government lawyer in the Office of General Counsel of the War Manpower Commission (WMC) explained to a local agency representative in 1944:
A reading of the Contract to Employ and Transportation Agreement, which is entered into between the employer and the United States, and the individual work agreement, entered into between the United States and the worker, show that neither the employer nor the worker has the right to terminate employment at will, but such right rests with the Chairman of the War Manpower Commission acting through its authorized representative.Footnote 27
Employers could therefore not simply dismiss a worker and subject a worker to a loss of legal status in the labor market; they had to submit intent to dismiss a worker to the WFA or WMC in writing. The agency would then weigh the employee's rights against the employer's right to “diligent labor” under the contract, the broad umbrella term that also included the restrictive no-strike clause.Footnote 28 The standard of review administrators used to adjudicate employer dismissals was one of “good cause.”Footnote 29 It was only after hearing the worker statements that state administrators decided whether a worker was unable or unwilling to work in accordance with the provisions of the “diligent labor” clause under the contract, after which “the agreement may forewith be terminated,” absolving both employer and the government of wage promises.Footnote 30 As one memo pertaining to the repatriation of Jamaican and Bahamian labor read, “before any worker is repatriated or deported to his home it is necessary to establish the existence of a bona-fide reason for terminating the individuals' work agreement” in writing and on the record.Footnote 31 Agencies therefore laid down procedures that included the taking of statements, and the recording of workers' statements in writing, “due process.”Footnote 32 Agency policy, on the other hand, required that workers not be kept against their will in any labor arrangement.Footnote 33
The state-backed labor contract therefore constructed rights and legal processes that tempered migrants' deportable legal status. Moreover, approved termination did not always lead to repatriation, as the case of Edwards Forbes, with which I began this article, indicated. A clause in the WMC termination regulations specified: “Following a determination terminating the worker's employment, a regional office may find an employer in its region employing workers from the same country willing to employ the worker for the unexpired term of the contract.”Footnote 34 Officials of the WFA similarly wrote: “It is not our custom to send home anyone without fully exhausting all possibilities and employing them other than the first or even second unsatisfactory condition.”Footnote 35 In practice, then, administrative hearings not only oversaw and adjudicated employment dismissals, the legal process also constructed a unique remedy at termination, state-led reemployment. This remedy was unique to the wartime economy, where labor was not only needed, but agencies placed workers across labor markets in accordance with priorities set by the WMC.
Nonetheless, the contract remained highly repressive as agency personnel interpreted worker mobilization for higher wages or better working conditions and poor performance as violations of the “diligent labor” clause under the government contract. For example, in 1943, a representative of the Interstate and Foreign Labor Branch of the WFA conducted an inquiry into Dr. Phillipps Co.'s dismissal of ten Bahamian workers in Florida. He wrote, “as an observer, I saw a total of seventeen men entrained at Orlando for the destination of Miami. They were removed from the Dr. Phillipps Co. on the employer's report that they “refused to work.”Footnote 36 The investigator found that “refusing to work” (a tool of labor resistance and wage bargaining) indicated the workers had broken their contracts. After the investigation, the administrator concluded that:
the ten Bahamians released from the Dr. Phillipps Co. were a part of the 17 workers drawn from the Okeechobee Camp who were unable to adapt themselves to the conditions in this large camp and were given a poor performance record. They were sent to Dr. Phillips Company, remained there for three days, and were encouraged by all possible means to work but refused to leave the camp for the groves … This information was submitted to our representative handling embarkation and repatriation. With the full evidence submitted, he conducted a hearing and obtained a release from all of the men ….”Footnote 37
Similarly, agency personnel responded to employer claims of poor performance by approving termination. When a New Hampshire employer, William H. Champlin, wrote a letter to the WMC claiming that the Jamaican Gibbs's “work has been thoroughly unsatisfactory since the beginning of his employment, and it has become increasingly worse to the place where his foreman can no longer use him nor can he be used in any other capacity with the Company,” the investigator concluded that the worker's attitude “indicated an unwillingness on the part of the worker to live up to contract,” grounds for repatriation (Administrative Determination in the Matter of Sylvester Gibbs July 20, 1945).Footnote 38
Furthermore, given the state's role as the labor contractor and guarantor of the contract, workers who filed complaints with agencies against their employers risked their status. On July 28, 1944, a Jamaican worker wrote a note to the Chairman of the WFA, and copied the letter to President Franklin Roosevelt. In his letter, he complained about the conditions at the General Cigar Corporation Farm, a tobacco farm in Connecticut. His letter read:
Jamaicans driven as dumb cattle working under intimidation. United Nations' fight for Freedom. Justice. and Fair Play [sic]. We should have same. A Copy of this sent to President Roosevelt.Footnote 39
Seven days later, on August 5, a WFA area representative was dispatched to the tobacco farm, where he proceeded to investigate the claim by interviewing several workers. George Christie reported that he had been working for the General Cigar Corporation since June, before which he had been employed at Burr Nurseries. Christie stated that since he had been employed at the General Cigar Corporation, “conditions had not been suitable to him. Often he had been threatened by the bosses that if he didn't keep up with his work, he would be sent back to camp” (i.e., he would be deprived of work and, hence, a wage). In the report, the investigator remarked that he also spoke with over ten other workers, who, in contrast to Christie, “generally seemed satisfied” with their job, although some men did state that they had some problems with the boss. From the statements, the investigator concluded that if the workers did not work hard enough, the farm leader reduced their pay. The investigator's report read that “while conditions get a little rough” on the camp, they are generally “ok.” He further noted that the worker should be repatriated to Jamaica, as other workers had told him that “Christie was trying to make a leader of himself” at the farm. Additionally, he wrote that Christie should never have written directly to President Roosevelt. The WFA removed George Christie from the camp and he was sent to a state-run labor center in Florida to await repatriation. He would receive a red X on his passport, indicating that he had been repatriated “for cause,” meaning that he could no longer enter the country legally (Hahamovitch Reference Jessop2012).
But, many times, at the discretion of a local administrator, employer termination did not lead to repatriation. In one case, when the Connecticut Coke Company wanted to terminate Patrick Ross because he “has displayed a violent temper” and “he had a habit of leaving his job and wandering around the plant and that he disregarded the safety rules at the company,” the agency decided to give the worker another chance at the Bassick Company in Connecticut (Administrative Determination in the Case of Patrick Ross June 23, 1945).Footnote 40 A similar outcome ensued after a wage dispute between the Brunswick Pulp and Paper Corporation and Kenneth Bancroft escalated to the point that the employer sought to dismiss the worker. The worker had demanded increased pay and had refused to work until he was paid a higher wage. The company argued that the worker was not entitled to a higher wage until he learned his job properly, which would take at least three weeks. Despite the fact that the worker would not back down, the WMC determined that the worker be given an opportunity of negotiating another contract (Administrative Determination in the Case of Kenneth Bancroft July 23, 1945).Footnote 41
State control over the migrant labor contract also gave workers more control over their right of movement in the labor market, given the context of their employer-dependent status. Unlike in all subsequent years, where workers would need to work through employers to change jobs, in the war years, migrants unhappy with their job could petition the state for transfer. For example, when Jamaicans complained of long hours in a packaging plant in Wisconsin, the WFA administrator decided to dissolve their contracts and to move them to the cherry orchards, hoping that they would be more satisfied there.Footnote 42 When a Jamaican worker, Grant Answorth, contacted the Stamford, Connecticut, USES office in July 1945 to request a transfer, as the work he was doing at a steel manufacturing plant was “too heavy,” the local administrator talked to the local Coke company and secured the worker a new post (Administrative Determination in the Case of Grant Answorth July 30, 1945).Footnote 43 In 1945, five Jamaican workers petitioned the WMC to dissolve their contracts with the Stephenson Lumber Company in Wilson, North Carolina and move them elsewhere. The workers claimed that their boss had “threatened to strike them with a stick, and on several occasions has shoved them with his hand.” The employer objected to their leaving on the grounds that “I have gone through a great deal of expense to acquire these workers, and would like to keep them, so that I may receive, at least, part reimbursement for my expense.”Footnote 44 The WMC administrator decided to move the workers to Wilson Veneer Company, stipulating that “it is the opinion of this office that this situation will not be remedied. From personal interviews with these workers and Mr. Stephenson, it is probable that a racial problem will develop” (Administrative Determination in the Case of Livingston Crichlow et al. July 27, 1945).Footnote 45
The cases above delineate how state-led migration and contractual administration in conjunction with labor market planning under state-led migration during World War II defined the meaning of temporary migrant labor status in this period. While involuntary repatriation at the hands of the state could result from employer terminations and there was no protection for complaining, mandatory contractual review and the discretionary legal remedy of reemployment meant that workers could often stay in the country post-termination.
While state-led migration continued in agriculture until 1964, in the 1950s the state retreated from its wartime role in the placement of labor. Although the government continued to guarantee the migrant labor contract, its role in termination proceedings weakened, altering the meaning and practice of rights and legal processes under the Mexican American “Bracero” program. Migrants' status had already become more vulnerable before the advent of privatized migration and new rights and legal processes under it.
B. 1951–1964
When the US government renegotiated a bilateral international treaty to import Mexican workers into US agriculture in 1951, the Mexican government again succeeded in getting, as the DOL Assistant Solicitor remarked, the US government to be “the guarantor to the Mexican workers for wages and transportation due them as a result of an employer's default.”Footnote 46 More specifically, what was called the “Standard Work Contract” established employer liability to workers, which the government assumed. Like in the World War II program, under the contract, employers were mandated to provide work or pay the migrant for three-quarters of the value of his contract. A migrant would lose this right only if he violated a “diligent labor” clause that specified, as the wartime contract had, that a worker “perform all agricultural work required of him with proper application, care, and diligence during the period of employment specified herein under the direction and supervision of the employer.”Footnote 47 This again included a no-strike provision.
Government assumption of employer liability under the migrant labor contract thus continued to establish a migrant's right to employment or payment. Working for three-quarters of the contractual period became, in effect, a state-backed entitlement that could not be taken away without due process of law as the government itself owed workers what was called a subsistence wage upon employer default. Given the arrangement, as in the wartime period, an employer could not dismiss a worker “at will” without moving through an administrative procedure that provided agents the opportunity to assess employer and state liability to them under the contract.
More specifically, Article 24 of the Migrant Labor Agreement of 1951, entitled “Termination of Work Contract Prior to Expiration Date,” established administrative review under procedural provisions defined under Article 30.Footnote 48
The procedures first established that it was the responsibility of each employer to “report to the Mexican Consul and to the Regional Office at least ten days in advance of the date upon which he intends to return Mexican workers to the reception center for termination.”Footnote 49 Article 30 also indicated that administrative procedures subsequently offer the opportunity for workers to be heard in front of an administrator. Administrative hearings were thus conducted at the local Bureau of Employment Security (BES) field office nearest to agricultural employment (the BES in the DOL had assumed control over the temporary migration labor program after WMC demobilization). Local field officers recorded employer and worker statements, as well as the explanation leading to “termination for cause.”Footnote 50 The concurrence of the Mexican Consul was also required.
The procedures provided very little protection for terminated workers, however. By 1953, the BES had pledged to work with agricultural employers to ensure that they could easily dismiss workers who “frequently refused to work, would not follow normal supervisory or production instructions, or who feigned frequent illness.”Footnote 51 Employers in California had complained to the Bureau's Farm Placement Representative that the Mexican Consul was not allowing them to dismiss workers by not approving terminations. The Employment Service assured them that compliance personnel would “handle the problem … in the field.”Footnote 52
What made matters worse for terminated workers, however, was the fact that, unlike in wartime, the BES had no regulations governing worker placement post-termination. Previous agency regulations specifying that the WFA and WMC refrain from repatriating migrants if workers were willing and able to work and jobs were available did not exist because the agencies no longer were involved in labor market planning and placement. Field representatives might relocate terminated workers by recontracting workers to a new employer if the situation presented itself, but this was not a policy nor an area over which the BES had much leverage at all.Footnote 53 The only remedy BES officials could offer terminated workers was compensation. BES officials could enforce employer liability under the three-quarters contractual guarantee at termination if investigation found that workers had not violated the “diligent labor” clause under their contract (difficult to prove amidst employer claims to the contrary). Doing so might be in the government's interest, as unpaid subsistence wages for the entire contractual period could become a government liability, and Mexican Consuls sometimes pushed for such compensation.
But, evidence from program administration records indicates that it often took intense pressure from below to get the BES to follow its own guidelines, in light of the policy it had made to facilitate employer terminations. For example, a conflict over proper termination procedure erupted in the BES in June 1953 when James Murray, a lawyer for the National Agricultural Union, objected to the termination and repatriation of Joaquin Palacious-Cossio, Andres Rodriguez-Marquez, and J. Luz Terrazas-Malagon. The employer, D'Arrigo Bros. Co. of the Imperial Valley Farmers' Association, had brought the workers to the BES for termination on the grounds that they had been “belligerent” and “uncooperative” in the field. D'Arrigo Bros. Co. also suggested that the workers sought to voluntarily repatriate, absolving them of their liability to pay all three workers the remaining value of their contract under the three-quarters guarantee. But, upon investigation, and prior to repatriation, the BES field representative had found that the three workers were actually dismissed on account of enlisting the aid of the National Agricultural Union to receive compensation for injuries sustained while in the field, which they did receive. The BES field officer attempted to relocate the workers; not finding anything, he allowed the workers to be repatriated.Footnote 54 James Murray wrote to the BES Regional Director alleging, in part, that the repatriation had been made too quickly, and that “proper procedure” had not been followed. Proper procedure included giving housing to workers at a reception center while the agency adjudicated what compensation employers were liable for under the three-quarters guarantee. The Regional Director's response indicates that the agency did subsequently calculate what was due the workers in response to this complaint (and after worker repatriation). Arrangements were made to transmit the payment to one worker:Footnote 55 a cashier's check would be transmitted to “The Secretary of Foreign Ministry of Mexico” for disbursement to one worker.Footnote 56 Given recent revelations that the Mexican government never reimbursed workers for wages withheld and deposited in Mexican bank accounts (Driscoll de Alvarado Reference Estreicher and Lester2003), the worker may have never received this check. Yet, the case file indicates clearly how the post-WWII “Bracero” program undermined a very significant remedy that had been available to terminated workers under the wartime emergency: possible reemployment. As I show below, workers lost even more rights vis-à-vis employers after the retreat of the state from running migration. New legal processes allow employers virtually unchecked power over migrant legal status today, from agriculture to the knowledge economy.
C. Rights Under the H-2 Program
In contrast to the US government's postwar renegotiation of a bilateral international labor contract with Mexico, the Jamaican government did not push for US state involvement after the war. Transnational labor migration under the newly established “nonimmigrant” H-2 visa therefore became entirely employer driven. Initially, privatized migration meant that from 1952 to the 1980s, employer dominion over the H-2 contract and workers was virtually complete. The contract signed by the Sugar Cooperatives and the Jamaican government made this clear: “The Employer may terminate the worker's work opportunity at any time.”Footnote 57 Successive labor secretaries did pass regulations governing the private contractual standards, such as the three-quarters contractual guarantee and paid transportation to and from Miami if a worker completed a contract (1957 and 1964, respectively), protections previously present under the state-administered program (the sugar industry had written out these protections in the immediate postwar years). However, even after the DOL issued the regulations, which mandated a promise of work and wages for a specified term, the agency established no legal process to enforce them. Forcible repatriation, the denial of the three-quarters guarantee, and transportation home were entirely in the hands of the employer (Hahamovitch Reference Jessop2012, 156–57).
Employer dominion over the migrant labor contract produced by state retreat was particularly useful to sugar corporations in the 1960s when mass strikes as well as hundreds of brief work stoppages involving individual work crews roiled the cane fields. Speedups in a booming industry, greed-driven wage squeezes, and the poorest of living and working conditions meant that workers sometimes refused a given task rate for cutting cane, after which the workers would “come out” of their rows, refuse to work, and hope to renegotiate.Footnote 58 When disputes were not resolved immediately, sugar companies sent the workers home. In 1965–1966, for example, 600 of 5,200 men brought in by just one association were repatriated. In 1982, 2,400 men met the same fate (Hahamovitch Reference Jessop2012). While immigrants outside the program had gained rights to deportation hearings through the 1940s and 1950s (Kanstroom Reference Menz2007), for those within the H-2 program, in contrast to the 1940s, employer termination now meant deportation without any hearing.
When Congress allowed for the expansion of the H-2A program under the 1986 IRCA and undocumented legalization program, political interests concerned with farm worker justice demanded increased rights and legal processes for H-2A workers. The DOL responded by setting the H-2A employment termination standard at “for cause” in 1987, meaning that employers could no longer make a private contract along the lines of the older sugar agreement. “For cause” prohibits employer termination for no reason at all, and mandates that the employer assume the liability of the uncertain timing of a harvest. The new standard also included an antiretaliation provision, meaning that employers cannot dismiss workers for filing legal complaints against them. The regulation also stipulated that if an employer required a productivity quota under a piece-rate system, it needed to be specified in the DOL certification and the work contract itself. While the “for cause” standard returned the protections to those that had characterized the state-led framework, the productivity quota offered the possibility that administrators could now judge worker output against a prespecified fixed work pace. All protections, including the three-quarters guarantee, free transportation, the “for cause” standard, and the productivity quota were also now directly enforceable under a DOL administrative process.
In contrast to the state-run framework, when contractual review at the end of employment was a routine part of administrative practice, the 1987 regulations (which remain in force) rely on workers to bring claims of unlawful termination, either by filing a grievance themselves or with the help of a legal professional. However, since a terminated worker must return to his or her country of origin within ten days, successfully filing a claim of unlawful dismissal is unlikely. Furthermore, in the absence of state-led recontracting and given the reality of a seasonal visa, workers often hope to be rehired in the coming year, making claims of premature dismissal on account of lack of work an unattractive option, despite antiretaliation protections.
Moreover, since 1987, administrative processes and court decisions have narrowed the meaning of the protections in practice. As the farm labor advocate Michael Holley (Reference Kawar2001) has demonstrated, unlike under other DOL regulations, the DOL's mandate to take up any H-2A case is discretionary, meaning that there is no imperative for the DOL to respond to a claim at all and investigate. Holley contrasted the rules to those in place guaranteeing review of growers' petitions if they are denied access to foreign labor for any given season. In light of the absence of investigations and long delays, lawyers working on behalf of migrants have brought many claims into courts, but courts cite a 1984 appellate case, Nieto-Santos v. Fletcher Farms (1984), to deny federal jurisdiction over the H-2A contract, which is where termination rules are specified.Footnote 59 In this case, the Ninth Circuit ruled that H-2A workers do not have a private right of action in federal court without exhausting administrative remedies, and that the proper forum for addressing breach of contract cases, even under federal standards, is in state court. Court decisions, therefore, now push H-2A workers into a system where there is no imperative to investigate a claim, and send workers to local trial courts to fight out the “for cause” mandate with their employers.
It is very difficult to prove “cause” in the shadow of employer prerogative to dismiss in a court trial. Take the case of Mexican worker Isidro Favela-Westra, hired by Wester Farms in North Carolina to pick jalapeno, banana peppers, bell peppers, and harvest tobacco. In 2002, Favela-Westra claimed that he received a notice that his productivity was lower than expected on bell peppers, which ultimately led to his dismissal. However, Favela-Westra also noted that there had been no productivity standard included in the job contract for bell peppers, as mandated by DOL regulations for crops harvested on a piece-rate system. At trial, a cultural anthropologist testified that migrants are often made to agree to voluntary quit agreements against their own interests, a document that Favela-Westra had indeed signed. Both the trial and appeals court ruled against Favela-Westra, however, based on employer testimony that it did not pay workers on a piece-rate basis, but on an hourly system, for bell peppers. Hence, the employer retained complete discretion to dismiss Favela-Westra for his performance in bell peppers. This decision was made despite the lack of clarity in the business records and worker testimony “that he was required to fill up a certain number of buckets, which is characteristic of a piece rate” (Franco Favela-Westra v. Wester 2002).Footnote 60
State courts, for their part, have also further consolidated the discretionary administrative process and remedies under it while denying workers coverage under state-specific statutes. In Rowe v. Grapevine (1999), for example, lawyers from the Mountain State Justice Project in West Virginia brought suit on behalf of thirty-seven Jamaican workers against the Grapevine Corporation, an umbrella organization for the state apple orchards. Grapevine had assumed the role of labor contractor and had failed to honor the three-quarters guarantee, dismissing workers prematurely for lack of work. The workers had already filed suit with the DOL, which had entered into a settlement agreement with Grapevine to effectuate compensation. It took six years for the DOL to make this agreement, which was negotiated without the consent of the workers; therefore, one of the claims brought to state court was for increased monetary compensation. The Supreme Court of West Virginia ruled that the DOL was the workers' representative under the regulations; therefore, any settlement agreement barred any subsequent claims. Furthermore, the court dismissed worker claims for compensation under the West Virginia Wage Payment and Collection Act on the grounds that the three-quarters guarantee was beyond the purview of the statute because it only protected workers for wages for actual “work performed.” The decision circumvented the fact that the reason workers made the claim in the first place was that employers had broken a promise to have work to be performed.Footnote 61
State courts have also narrowed the meaning of antiretaliation regulations. Under temporary labor migration, antiretaliation is itself a new right; as, even under the state-led framework during World War II, government officials could terminate workers found to have unjustly complained, marking an X in their passport, and barring them from another job. In 2006, however, the Vermont Superior Court ruled that the regulation was not meant to apply across seasons, despite a worker's plea to the contrary. A Jamaican worker, Alphonso Myers, hired by Dutton Berry Farms, argued that his employer failed to rehire him the following season after he sought legal counsel and filed an administrative complaint. Alphonso argued that the federal antiretaliation provision protected him against what was a “breach of an implied promise on the part of Dutton, based on long-established practice, to continue to rehire Myers each year unless there was good cause not to.”Footnote 62 However, when faced with this claim, the Superior Court responded in the negative, ruling that “there are limitations on the kinds of facts and circumstances in which a promise of continued employment … has been implied.”Footnote 63
In the rare cases when the federal courts have addressed issues of termination, they, too, have narrowed the DOL termination protections. In 1986, Florida Rural Legal Services began a decades-long series of lawsuits targeting wage fraud in the sugar industry. As part of the strategy to gain back wages, lawyers filed a suit challenging the early termination of BWI workers during the 1988–1989 season. The trial court ruled that the workers were indeed due back wages because the termination provision violated the DOL three-quarters guarantee. The appeals court reversed, however, ruling that the termination was consistent with the DOL three-quarters guarantee, citing a subclause in the private contract that allowed sugar companies to dismiss workers if the season finished early.Footnote 64 Court interpretation of the employment contract in this case not only truncated workers' access to income in the 1988–1989 season, it legitimized an industry interpretation of the three-quarters guarantee, which, in contrast to the wartime program, devolved the risk of the absence of work in a seasonal occupation onto workers.
If the administrative process and litigation has led to standards that make it difficult for H-2A workers to prove cause and gain remedies at termination, the H-2B program, in contrast, has no standards at all. As I discussed in Section II, employers in seafood processing, hospitality, and landscaping have increasingly turned to H-2B labor since 1986, showing how the employer-driven visa program now accommodates post-Fordist low-wage labor processes. The absence of legal rights and legal processes protecting H-2B workers resembles that of the sugar industry from the 1950s–1980s. There is no three-quarters guarantee or any standard of review for termination, meaning that employer dominion over H-2B migrant labor status remains complete. Immigrant labor activists are currently challenging this situation in the courts, while the employer defense on the matter is quite telling. As GLK Foods in Wisconsin is currently stipulating in a pending case, they have no obligations to employ hired workers for the entire season and can dismiss workers “at will,” as, according to them, the H-2B visa itself “cannot create employment contracts as a matter of law.”Footnote 65 Implicitly, the employer argument is that under the H-2B program, the prerogative to induce loss of status and forced repatriation is unfettered. This employer position has already been litigated in a very different sphere of the labor market, the post-Fordist knowledge economy. Here, as I demonstrate below, we see how current rights and processes under the employer-driven order not only do not mitigate employer power over migrants in low-waged labor markets, foreign workers in the knowledge economy also grapple with the limited remedies currently offered to them by courts and under administrative channels, showing how weak migrant labor rights define power relations across sectors today.
D. Rights at Termination in the Knowledge Economy
Unlike in the past, when the state regulated termination (as part of the due process to which workers were entitled under the state-backed contract), and unlike the H-2A contracts since 1987, courts have defined the H-1 employment relationship to be one that is “at-will.” Indeed, in response to litigation by H-1B workers who have come to the United States and found themselves without a job (an effect of the privatized migration regime itself), courts have rejected claims that visas constitute any kind of contract or promise of employment between an employer and the individual.Footnote 66 For example, in Van Heerden v. Total Petroleum, Inc. (1996), a temporary migrant from South Africa who moved to Denver argued that the company induced him to quit his job and migrate to the United States, after which it dissolved his position. Van Heerden argued that this had caused him much emotional duress, as he had moved expecting that his three-year visa meant employment for a fixed three-year period. The federal district court concluded: “An individual hired for an indefinite period of time in Colorado is an ‘at will employee' whose employment may be terminated by either party without cause and without notice” (Van Heerden v. Total Petroleum, Inc. 1996). While the principle of “at-will” employment is ascendant across the economy (Estreicher and Lester Reference Feinman2007), its articulation in relation to migrant workers strengthens employer power over their tenuous status in the economy and polity.
Congress did, however, direct the DOL to make regulations to protect workers in the knowledge economy in 1990 (for H-1 visa holders) in the name of placating domestic interests concerned that the program would produce a race to the bottom of labor standards. The DOL proceeded to pass antiretaliation protections, as well as a mandate that an employer execute a “bona fide termination.” A bona fide termination specifies merely that an employer write a letter to the Immigration Authorities, the USCIS. If this procedure is followed and if the employer informs the employee of his or her termination, visa revocation is considered automatic.Footnote 67 Remedies for breach of the antiretaliation or bona fide termination provisions include monetary compensation to the worker for the value of the private contract (to be determined by any existing private contract or an administrative calculation) or the reinstatement of a worker.
Like under the H-2A program, courts have interpreted the regulations to mean that H-1B workers do not have a private right of action in federal court (Shah v. Wilco Systems 2000). Workers must exhaust administrative remedies first. Nonetheless, when migrants have used these rules to challenge employer dismissals, workers have found that administrative findings provide little maneuverability through which they can negotiate their restricted status via the law. Although compensation and reinstatement are available remedies for wrongful termination, administrators do not use them. As with the case of Marcos Sisfontes with which I opened this article, who had lost his job for participating in a DOL WHD investigation, administrators do not consider workers' claims of wrongful discharge in their determination. Like under the H-2A rules, administrators hold discretion to decide which claims to investigate under 20 C.F.R. 655.
Workers' problems at termination, therefore, often fall outside of law's purview. Take the case of Babak Samani, an information technology specialist from Iran. Babak Samani's claim to the DOL in October 2001 stipulated that he had been working for wages that were well below that which his employer had promised to pay him under his visa application, a rate that the Labor Department enforces. He claimed to have been paid $14,400 a year as opposed to $47,500. Babak Samani also made a claim of unlawful termination on his complaint form (ESA Form WH-4), specifying that he had been fired for cooperating with a DOL investigation after his sister had filed legal actions against the company: “I was pressured by Darius and other co-workers/managers to force Aman (sister) to stop her complaints/actions against the company … I was terminated from my job on September 28, 2001.”Footnote 68 The issue of termination as a retaliatory measure for aiding a family member file a complaint against an employer did not appear in the administrative determination letter, however, indicating that the investigator chose to drop this part of the claim. While Babak and three other employees received $52,110.41 in unpaid wages, issues of termination following underpayment went unaddressed in the case. If Babak had not found another job, he would have had to return to Iran.
The case of Gurpeet Singh Khurana involved a different situation, but resulted in the same administrative outcome. Khurana, an information technology consultant, filed a complaint that his employer, Strategic Distribution, Inc., had forced him to work in excess of citizen workers, a violation of H-1B rules. When the worker objected to this fact in the workplace, his employer fired him.Footnote 69 Despite the fact that the law of wrongful discharge protects workers from retaliation when they protest unlawful company actions in the workplace, the administrator did not find a violation in the case.
When a worker filed a complaint of wrongful discharge against his employer, Appalachia Health Services, a medical labor service provider, he received the same administrative determination. Appalachia Health provides physicians to area hospitals and medical centers. According to the worker, despite the fact that “AHS had promised to employ me for the duration of my work permit … AHS had forced me to work for their sister company in order to get my salary and continued to demand I continue to work for their sister company even when they knew it was not legal and subsequently fired me when I refused to do so.”Footnote 70 A labor market coordinator from Kentucky had already informed the worker that he should not be working for Appalachia's sister company, as the visa makes it unlawful for H-1Bs to work for anyone else save the employer named in the permit. However, the administrator did not address the termination in the investigation, despite the fact that the company was violating public policy.
Other workers ignored in the initial administrative determination have been persistent, bringing their claims to the Office of Administrative Law Judges (OALJ), which offers employers and employees hearings when they are impacted by lower-level agency actions. Here, workers have been able to receive some financial compensation for termination, and even offers of reinstatement. However, these cases are not so easy to win in light of administrative discretion. Marcos Sisfontes, the information technology worker from Costa Rica, from the beginning of this article, challenged his administrative finding that had failed to extend him “whistleblower” protections in 2007. However, the administrative law judge would not address the conditions of his termination on the grounds that the DOL administrator had not.
In contrast, workers are on better ground when an administrator has addressed the claim of termination in the initial investigation. Two workers won after trial in the case of Rudranath Talukdar and Harjinder K. Virdee v. Department of Veterans Affairs (2002). Both migrants were physicians at the Department of Veterans Affairs in North Dakota. They claimed they had been fired after cooperating with a DOL inquiry regarding low H-1B salaries in their office, not in relation to a budget shortfall, as the WHD had determined. Since the WHD had addressed the claim in the initial investigation, the administrative law judge found in the workers' favor on the grounds that the “budget shortfall” claim lacked credibility and both physicians were given the option of back pay and reinstatement.Footnote 71
Rungvicit Yongmahapakorn, similarly, won her case, despite the fact that the WHD did not support her. Rungvichit had worked for five years as an internal auditor for the Amtel Group of Florida, which ran a Ramada Inn. She had been terminated when she had flown back to Thailand to renew her H-1B visa. Rungvichit would appear at her hearing via teleconference from Thailand, highlighting the precarious nature of temporary migrant employment, one that the legal process does not remedy. Rungvichit's virtual trial also highlights the effects of state retreat from governing termination questions. A priori employer review is now absent and workers are left to negotiate their status on their own. From afar, Rungvichit argued that her termination had not been bona fide, since the company had not followed their own “just cause” termination standard as defined by their employee handbook. Unlike the WHD administrator, who challenged Rung's interpretation of the termination standard at trial, the administrative law judge decided that bona fide must be interpreted to mean what is written in the company handbook. The judge awarded Rung “front pay,” mandating that Amtel pay her as if she had worked for the entire time remaining portion of her visa (two years).Footnote 72 In doing so, the administrative law judge expanded the legal protections for workers based on an employer's own policy. However, this logic would be overturned on appeal, as the Amtel Group of Florida filed for review. An Administrative Review Board (ARB) judge wrote that no “just cause” standards were contained in the termination regulations under C.F.R. 655.731. Despite this move, the ARB kept the value of Rung's compensation for termination intact (two years of salary) by ruling that Amtel Group did not make bona fide termination as specified under the law by contacting immigration authorities and canceling her visa. Thus, while Rung won the case, the expansive legal standard was pushed back, giving all H-1B employers more power over migrants in the workplace.
IV. Conclusion
I began this article with the employment termination cases of Edward Forbes and Marcos Sisfontes in order to illustrate how many of the checks on an employer's power over the migrant labor relationship have been lost through state retreat, despite the advent of new rights and legal processes. Labor and employment rights have been central to how deportable migrants across time and sectors have negotiated their tenuous status to work in the United States. Yet, as I have found, law's form has changed across periods, with significant consequences for migrants. When New Deal and wartime agencies were dismantled, and after foreign governments lost the power to demand US state contractual guarantees, legal processes no longer provided direct oversight of the employment relationships, and migrant rights and public administration of them shrunk. Employers gained almost unfettered power to dismiss noncitizens and induce forced repatriation. While workers and their advocates have sought increased protections in the courts, the judiciary has, more often than not, hollowed out the available statutory and administrative standards, leaving deportable workers across sectors more vulnerable to employer power than ever before. While deportable labor rights at work have mattered and continue to shape the meaning of migrant labor status, post-Fordist and neoliberal labor markets continue to draw on the circulation and availability of coerced workers with weakened contractual rights across sectors.
Is change on the horizon? Perhaps. In 2010 and 2015, the Obama Administration issued new rules for both the H-2A and H-2B programs, respectively. Expanding on a Bush-era 2008 rule, which had required employers under the H-2A program to notify the Employment Training Administration (ETA) and USCIS when terminating a migrant “for cause” (in order to advertise the position to domestic workers, a process that had been in place since 1987, and to bolster homeland security functions), the 2010 rule, in contrast, required the WHD to make “reasonable efforts” to investigate all terminations in the absence of a complaint to determine (1) whether antiretaliation protections had been violated; (2) whether a lack of work had existed; or (3), as the Deputy Director of the WHD wrote to regional offices in 2012, whether termination accords with “the specific productivity and other job-related requirements” included in the work contract.Footnote 73 Make-whole monetary relief and reinstatement are possible remedies under the policy. As of April 2015, the three-quarters guarantee and review of employer terminations will also apply to H-2B workers. The new rules will make it impossible for employers to argue, as GLK Foods is currently arguing in Wisconsin, that the H-2B application cannot create employment contracts as a matter of law.
But what will “reasonable efforts” entail, given the previous culture of investigatory discretion and the small staff of administrators overseeing 7.3 million establishments and 135 million workers?Footnote 74 How will federal and state courts, historically no friends of temporary workers, as detailed above, interpret this “reasonable” standard? Will Congress or administrators ever provide, via statute or regulation, a private action to all temporary migrant workers to take their claims to federal court (institutions arguably less discretionary than administrators and more neutral than state courts on matters of employment contracts)? Is the problem of employer dominion, too much coercion in the contract, even solvable merely via rights and remedies in the existing legal process? After all, the temporary labor migrant was originally imported under government protection in a planned labor market with a commitment to the full employment of foreign workers. Today, in contrast, deportable migrants, primarily from the global south, work in greater numbers than ever across sectors characterized by seasonality, casualization, and subcontracting, without government guarantees and placement services in the economy. Thus, while the Obama rules may be progressive in the name of social justice, social change in the form of a significant decrease of employer dominion over migrants is unlikely.
What can reformers do? My findings indicate that the problem is not simply the lack of visa portability and rights enforcement alone, as guestworker activists currently claim. For while both goals are notable, they remain tied to the employer-driven paradigm. Although portability implies more migrant freedom to change jobs at will without fear of loss of status in the labor market, increased rights protections offer better tools for workers to use against employers. Perhaps, however, it is the level of government intervention in the management of migration, including US contractual commitments to foreign guestworkers, that matters. To prevent extreme vulnerability across sectors, then, what we need is not just more movement in the market or more rights enforcement, but state liability itself.
