Legal But Exploited?

In August 2003, representatives for Eller and Sons Trees, a Georgia-based reforestation company, called for a meeting in El Chalum, La Libertad, a small village in rural Guatemala. Everyone who wanted to work planting trees in the United States that year was required to attend.

“About 800 workers of [the company] attended this meeting. The meeting lasted almost all of one day. People traveled from far away to attend this meeting and paid their own rides,” said Margarito Recinos, a villager from El Chalum.

Almost all of the workers in the meeting, he says, were required to leave the deeds to their home or land with representatives of the company before they could come to the United States as legal migrant workers.

Turning over the deeds constituted “forced labor and/or trafficking into servitude,” according to a lawsuit filed last month in U.S. District Court in Atlanta against Eller and Sons by the Southern Poverty Law Center in Montgomery, Ala.

The suit, which seeks to represent a class of over 1,500 migrant workers from Guatemala and Mexico, who worked for the company during a six-year period, alleges that as a condition of being hired, workers were required to leave the deeds to their property as collateral, so that Eller and Sons “could be assured that the workers would remain under the control of and in the employ of the [company].” The complaint contends this meets the definition of forced labor or human trafficking under the Trafficking Victims Protection Reauthorization Act.

The suit also charges the workers were paid far less than the prevailing wage in the areas where they worked in the South — sometimes earning as little as $25 for a 12-hour day planting mostly loblolly pines.

J. Larry Stine, Eller’s attorney, denies the charges and says the company does not hold the workers’ deeds. “Eller does not require the employees to sign the deeds over as collateral,” he says. The company is based in Franklin, north of LaGrange in West Georgia.

Although lawsuits filed in Georgia alleging the exploitation of illegal immigrants may get more attention, a comparable number of suits is targeting alleged mistreatment of legal migrant workers, attorneys say. The SPLC complaint raises questions about whether legal migrant workers who come to the United States under a federally approved program might make less money and be treated more poorly than workers who enter the country illegally.

SPLC filed the suit as a class action because it believes there are more complaints that can be documented, and by petitioning the court to allow five plaintiffs to represent a class of 1,500 or more with one lawsuit, the SPLC would be able to talk to more workers with similar complaints. Eller and Sons is challenging the class action request.

The Eller and Sons workers were hired through the H-2B “guest worker” program, formerly administered by the Immigration and Naturalization Service and now coordinated by the Department of Homeland Security.

“The H-2B program is quite a lot like indentured servitude in that you’re only permitted to work for one employer,” says Andrew Turner, an attorney with the SPLC, “but you don’t have the collateral benefit to the indentured servant in American history of actually being able to earn your permanence.” When the visa expires, the workers must return to their home country.

The lawsuit was filed amid escalating debate over immigration. In April, the U.S. House voted down two bills that would have reformed the current guest worker programs. On the other hand, proposals such as the Clear Law Enforcement for Criminal Alien Removal Act, introduced by Rep. Charles Norwood, R-Ga., have sought to require local law enforcement officials to enforce federal immigration laws. Critics say this kind of reform would shift police priorities, forcing them to chase down illegal immigrants instead of creating a system allowing smooth flow of legal workers while police concentrate on more urgent criminal threats.

In theory, companies in industries that want to import labor through the H-2B program must first protect the domestic workforce by paying the guest workers at or above the prevailing minimum wage (normally higher than the federally mandated $5.15 per hour). This rate is determined by a U.S. Department of Labor survey and is calculated to reflect what would be the minimum rate at which domestic workers would be willing to work. Companies hiring H-2B workers, by law, must pay them at this rate.

“When the law isn’t complied with, what you have is not just a harm to the migrant workers, but harm to the American workers who are supposed to be protected by the limits on the guest worker system as well,” says Turner. When the law is broken, it means companies are using legal migrants to work for less than American workers would earn.

The SPLC lawsuit alleges that Eller and Sons laborers were not fairly compensated for their work. The company’s terms of employment stipulate that workers are guaranteed minimum wage even though they are paid at a per-tree rate, which can vary from .0025 cents to 5 cents per tree or more, depending on a number of factors.

The argument for this system is that workers can potentially earn more than if they worked on a per-hour rate. “The prevailing wage runs around $8.29, $8.50, $8.75 an hour,” says Stine. “If I pay you the way Eller pays them, I will pay you $8.29 an hour or I’ll pay you so much a tree, whichever is more, so it gives the employee the opportunity, if they want to do so, to plant more trees and make more money.”

Planters for Eller are expected to plant, on average, 2,500 seedlings in an eight-hour day. Yet workers complain that they were only capable of planting 1,300 or 1,500 trees and were working up to 12 or 13 hours per day. While the terms of employment say that “a planter should be able to earn close to $41.20 in an eight-hour day” (at the minimum wage of $5.15 an hour), workers say that on some days, they could only make $25 for a 12-hour day.

The Bush administration has discussed reforming immigration laws by renovating the guest worker program, but Turner says the H-2B visa is the “predominant model.”

“The proposals that have been floated look disturbingly like an unmitigated expansion of the H-2B program,” he says, “which has proven very problematic when your legal immigration status is tied to the whim of one employer, who can then violate your rights under the labor laws, and it takes a lot of courage to be able to stand up to someone who can send you home as well.”

While an illegal immigrant may pay a smuggler anywhere from $3,000 to $5,000 to come to the United States to work, compared to the $1,000 that legal migrant guest workers spend on plane ticket, visa and passport costs, Turner says illegal immigrants may earn more than what guest workers can earn.

“That’s an unfortunate perverse incentive, as long as companies working through the guest worker system are permitted to offer illegal terms and conditions of employment,” he says, “there’s an affirmative disincentive for workers to stay in the guest worker system and it becomes a problem with ‘encouraging’ undocumented work.”