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Meeting of June 17, 2015 - Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention

Written Testimony of Daniel Werner Senior
Supervising Attorney
Southern Poverty Law Center

Madam Chair and Commissioners, it is a great honor to testify again in front of the Equal Employment Opportunity Commission. Time and again, my colleagues and I have seen the vulnerability of immigrant and migrant workers to retaliation. The consequences of letting retaliation go unchecked can be severe. Fear of retaliation is the single greatest factor that dissuades immigrant victims of discrimination and other labor abuses from seeking justice. If retaliation is allowed to occur with impunity, so will the underlying discrimination.

While retaliation against immigrant and migrant workers certainly spans the forms of retaliation we see in the non-immigrant workforce, immigrant workers - and particularly migrant immigrant workers - are especially susceptible to retaliation for three principal reasons. First, abusive employers fully recognize the impact threats of deportation or repealing a worker's immigration status can have on the worker's willingness to remedy discrimination. Second, both undocumented workers and visa holders without portability between jobs have very limited or even no opportunities for other employment. Therefore, while retaliatory termination can have financial consequences for most workers, these consequences are particularly dire for immigrant workers who are unable to participate in the free market of labor. Third, lack of resources to support civil society in many source countries makes threats of violence and other harm to the worker and her family, and blacklisting in recruitment networks, very real.

I will address each of these concerns in turn. In this discussion, I will refer to two types of immigrant workers: undocumented workers, referring to immigrants without legal authorization to work in the United States; and guestworkers. Guestworkers are legally present in the United States specifically for the purpose of their labor.1 However, by function of law, guestworkers generally have no real portability between jobs; their visas tie them to a single employer or broker. With very limited exceptions, if a guestworker leaves her employer - either voluntarily or through termination - and remains in the United States, she becomes undocumented.

  • Threats of Deportation or Repeal of Immigration Status

The threat of deportation or repeal of a worker's immigration status - or overt steps to start this process against workers who have attempted to exercise their rights under Title VII and other remedial employment statutes - is a common theme across many retaliation cases. For undocumented workers, this may be particularly pronounced. As the Commission is aware, the U.S. Supreme Court's 2002 decision in Hoffman Plastics,2 limited the remedies available to undocumented workers who are, under certain circumstances, subjected to retaliation in violation of the National Labor Relations Act. This decision continues to impact litigation strategies both within government agencies - including the EEOC - and in the public interest bar. While the scope of Hoffman Plastics has since been viewed narrowly by courts, it still presents the danger that employers will present after-acquired evidence of undocumented status as at least a partial defense to retaliation claims. Indeed, it remains standard in immigrant employment rights cases for employers to raise Hoffman Plastics as a defense or as a tool for harassing discovery into aggrieved workers' immigration status.3

Montano-Perez v. Durrett Cheese4 is a particularly striking illustration the vulnerability of undocumented immigrants to retaliation and the importance of a swift response. In Durrett Cheese, the Southern Poverty Law Center represented 12 Mexican immigrants - Mixteco speakers who spoke only limited Spanish and no English. Over the course of their employment at Durrett's cheese processing plant in Manchester, Tennessee, the plant supervisor subjected the plaintiffs to pervasive offensive and potentially humiliating comments about their race, national origin, intelligence, language, and customs, among other things. Durrett also grossly underpaid the plaintiffs, frequently did not pay their wages on time, and at times did not pay them at all. In October 2007, after a particularly long period of not getting paid while continuing to endure persistent harassment, the plaintiffs collectively approached their employer to complain. The employer's response was to immediately summon the county Sheriff, who arrested the plaintiffs and handed them over to federal immigration authorities. The plaintiffs were "very fearful of what would happen to them and their families, [they] were interrogated for several hours before their attorney was able to secure their release."5

If our attorneys had not become aware - by happenstance - of the detention of the Durrett Cheese workers and acted quickly to secure their release and ultimately to pursue civil remedies, the employer would have successfully achieved his goal of making sure these workers had no opportunity to remedy the harassment and wage violations they suffered. This also would have sent a loud message to other workers that they dare not complain. One can only imagine how often this happens, unnoticed and undiscovered by advocates and the EEOC.

In the guestworker context, immigrant workers are faced with a somewhat different paradigm. Though they are legally working for their employer, their immigration status is entirely dependent on the employer. Many guestworkers also go deeply into debt in their country of origin to obtain the guestworker visa. This combination can be particularly devastating. A threat to revoke a visa - or to terminate a worker which would result in automatic revocation of the visa - presents guestworkers with a Hobson's choice: return to the country of origin to face debts that can never be repaid, seek employment in the U.S. as an undocumented worker, or remain with the abusive employer. In this situation, an employer need only retaliate against or just threaten retaliation against a few workers to achieve a compliant workforce. This is the exact situation the EEOC is litigating in its suit on behalf of H-2B visa holders against Signal International,6 in which SPLC is representing the intervenors. It is similar, as well, to what Thai H-2A farmworkers faced at Global Horizons; which resulted in EEOC litigation in Hawai'i and Washington.7

  • Lack of Opportunities for Other Employment

Threats of termination in any community with limited employment opportunities can carry a lot of weight. For undocumented workers, the prospect of retaliatory termination is especially daunting. For example, in the aftermath of Hurricane Katrina, SPLC represented a group of undocumented Honduran workers who were hired to refurbish water-damaged apartments.8 The workers were forced to live in squalor and, like the Durrett Cheese plaintiffs, they were not paid for weeks on end. When the workers asked for their wages, the employer threatened them with termination and eviction while dangling the carrot of wages at some point in the future. Knowing, as undocumented workers in a hurricane-ravaged city, that they would not be able to find either work or housing elsewhere, they kept working, at times getting their meals from dumpsters. They left only when they could no longer tolerate the hunger and humiliation.

For undocumented migrant farmworkers, vulnerability based on lack of opportunities is compounded by geographic isolation and blacklisting in migrant streams. Undocumented immigrant women working in the fields face rampant sexual harassment, including sexual assault. In the Southern Poverty Law Center's report, Injustice on our Plates: Immigrant Women in the U.S. Food Industry (SPLC 2010)9, researchers interviewed 150 women working in food industries - mostly in the fields and poultry plants - about their experiences. The report found widespread sexual harassment, tolerated because complaining would mean termination; many of the women were single mothers who needed the income to support their children. As one woman explained, "They mistreat us, and what can we do? Where would we go?"10

As I have described above, guestworkers' lack of opportunity comes not because they are currently working without status, but rather because they cannot under color of law seek employment elsewhere. For many guestworkers, jeopardizing their coveted and often expensive visa is not a tenable option.

  • Lack of Civil Society Resources in Country of Origin

Migrant workers from politically unstable countries face an additional layer of vulnerability. With political instability, resources supporting a robust civil society decline. Corruption often takes its place and impunity pervades all levels of the justice system. Transnational migrants returning home, or the families of the migrants who remained home, are painfully aware that threats to themselves and their loved ones will go unpunished, and local law enforcement may even be complicit in these threats.11 Further, networks of contractors will often exercise near total control over the recruitment market across swaths of territory in source countries. This monopoly, coupled with impunity, give contractors disproportionate power over the transnational migrants they recruit. This may take the particularly pernicious form of assaults, kidnappings, and land seizures. However, contractors usually do not need to go to these lengths to silence migrants who seek to protect their labor rights while working in the United States. Rather, the blacklist may be powerful enough. The North Carolina Growers Association recruited for and placed H-2A guestworkers at farms across the state. NCGA went so far as to make the blacklist part of its business plan, effectively barring "undesirable" guestworkers from over 1,000 employers. The attorney representing the workers described it in stark terms: ""I know of no larger blacklist in US history. The NCGA blacklist eclipses even the infamous Hollywood blacklist in its size, scope and quite likely, in the suffering it causes."12 In essence, the quid pro quo for a guestworker visa is silence in the face of rights violations. Eller and Sons, a forestry company sued by a class of H-2B workers for rampant wage violations, went so far as to organize a seminar in Guatemala, where company representatives coerced workers to opt out of the class by threatening not to renew their visas.13 Many of the workers had left deeds to their family homes as collateral to obtain the H-2B visas,14 so ending up on the wrong list would carry grave consequences. The court later found the opt-out forms to be invalid.

RECOMMENDATIONS

Reducing the vulnerability of immigrant and migrant workers to retaliation requires in part political solutions: comprehensive immigration reforms, tightened controls over foreign labor recruitment markets, legislative fixes to Hoffman Plastics and Nassar, and development of civil society resources in source countries. However, there are several concrete steps the Commission can take that also would have a significant impact:

  • Rapid response to retaliation and collaboration with the public interest bar. As I have described in these comments, retaliation against immigrant workers can have immediate and severe consequences. The Commission should set up a rapid response team to immediately investigate and seek remedies - such as temporary restraining orders or preliminary injunctions - where immigrant workers face retaliatory deportation, visa repeal, violence, or blacklisting. The public interest bar can be an important ally in these efforts; particularly where immediate remedies may be available under statutes the EEOC is not empowered to enforce.
  • Continue to certify U visas. The Commission should be commended for implementing a protocol for the certification of U visas.15 Where immigrant workers face retaliation related to their immigration status, the U visa is a powerful tool to eliminate this vulnerability.
  • Continue to develop strategies designed to protect immigrant worker claimants over the course of EEOC litigation. The EEOC brings cases on behalf of victims of discrimination regardless of the victims' immigration status. This should continue. Over the course of the litigation - as the EEOC has done in multiple cases - the EEOC should seek protective orders and in limine orders prohibiting inquiries into or disclosure of a claimants' immigration status. The EEOC also should remain vigilant over the course of its litigation and have a plan in place to respond immediately to allegations of intimidation or blacklisting.
  • Seek maximum money damages and strong injunctive relief for retaliation claims.
  • Develop relationships with reputable NGOs and trusted government agencies in source countries. Even if civil society tools in source countries may not provide adequate remedies for transnational migrants facing retaliation, NGOs can play an important role monitoring recruiters, educating prospective migrants about their rights and remedies, and identifying and advocating with trusted local and national government authorities.
  • Collaborate with U.S. federal and state agencies to prevent unscrupulous contractors and employers from recruiting and hiring migrant workers. Farm labor contractor registration and licensing requirements, as well as recently promulgated guestworker regulations, provide tools to strip employers or contractors who have violated certain worker protections of the ability to recruit or hire farmworkers and some guestworkers. Where the EEOC brings retaliation claims, it should ensure that partner agencies take necessary action to strip the offending employers and contractors of the ability to engage in these practices.
  • Remain vigilant about possible human trafficking, and make referrals to law enforcement and service providers where the EEOC suspects human trafficking has occurred. In most cases, retaliation - or the threat of retaliation - is a central element of the coercion traffickers use to maintain a compliant workforce. In fact, for both sex trafficking of adults and labor trafficking under the federal Trafficking Victims Protection Act, it is the threat of serious harm or abuse of legal process that stands between a trafficking victim's servitude and her freedom. Where the EEOC identifies retaliation against immigrant workers, it should automatically assess whether the retaliation rises to the level of human trafficking. The EEOC should continue to implement policies and protocols to work with law enforcement and service providers if it identifies a case as potentially involving human trafficking.

Footnotes

1 Global Workers Justice Alliance has published an excellent interactive website providing detailed information about non-immigrant visa programs, including guestworkers. "Visa Pages" - U.S. Temporary Foreign Worker Visas, http://globalworkers.org/visa-pages (last reviewed June 11, 2015). The most common guestworker programs in U.S. low-wage industries are H-2A, for seasonal agricultural work, H-2B for temporary or seasonal non-agricultural work, and the J-1 cultural exchange program. The structure and regulations of the H-2A and H-2B programs invite and in fact result in severe labor exploitation, as described in Close to Slavery: Guestworker Programs in the United States (Southern Poverty Law Center 2013), available at http://www.splcenter.org/get-informed/publications/close-to-slavery-guestworker-programs-in-the-united-states (last reviewed June 11, 2015). The J-1 program is intended for cultural exchange, as opposed to labor. However, facets of the J-1 program have morphed almost entirely into a guestworker program, and the program is rife with abuse. See, e.g., Culture Shock: The Exploitation of J-1 Cultural Exchange Workers (Southern Poverty Law Center 2014), available at http://www.splcenter.org/get-informed/publications/Culture-Shock (last reviewed June 11, 2015).

2 Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002)

3 See, e.g., David v. Signal Int'l, LLC, 257 F.R.D. 114, 119-20 (E.D. La.2009) objections overruled, CIV.A. 08-1220, 2009 WL 2030382 (E.D. La. June 2, 2009)

4 Civ No. 3:08-cv-1015 (M.D. Tenn. 2008)

5 Montano-Perez v. Durrett Cheese Sales, Inc., 666 F.Supp.2d 894, 899 (M.D. Tenn.2009)

6 EEOC v. Signal Int'l, LLC, No. 2:12-cv-0057-SM-DEK (E.D. La. 2012).

7 EEOC v. Global Horizons, Inc., CV. No. 11-00257 (D. Hawai'i 2011); EEOC v. Global Horizons, Inc., No. CV-11-3045-EFS (E.D. Wash. 2011).

8 Garcia v. Audubon Communities Management, LLC, No. 08-1291 (E.D. La. 2008); see also Elizabeth Kristen, Blanca Banuelos, Daniela Urban, Workplace Violence and Harassment of Low-Wage Workers, 36 Berkeley J. Emp. & Lab. L. 169, 186-87 (2015) ("Commonly, undocumented workers fear being fired in retaliation for complaining about workplace violence because it is exceedingly difficult for them to find steady work. Consequently, undocumented workers are less likely to take action that may jeopardize their employment.")

9 Available at http://www.splcenter.org/get-informed/publications/injustice-on-our-plates (last reviewed June 11, 2015).

10 Id. at 23.

11 The Solidarity Center recently published a report describing the impact of political instability on U.S.-bound Honduran migrants. See Trade, Violence and Migration: The Broken Promises to Honduran Workers (Solidarity Center 2015), http://www.aflcio.org/content/download/147761/3770791/file/Honduras.PDF (last reviewed June 11, 2015).

12 Press Release, Legal Aid of North Carolina, Migrant farm workers charge blacklisting in lawsuit against North Carolina Growers Association (Apr. 20, 2004), https://www.legalaidnc.org/public/Learn/News/2004/farmworker-unit-sues-nc-growers-association.pdf (last reviewed June 15, 2015). The founders of NCGA and its related business, International Labor Management Corporation, were recently indicted on 41 counts related to a visa fraud scheme involving "falsifying applications to obtain more worker visas than were needed and then dispensing them to companies that had not qualified to use the foreign employees." Ken Otterbourgh, Officials at N.C. company International Labor Management are charged with visa fraud, Wash. Post (Feb. 20, 2014), http://www.washingtonpost.com/politics/officials-at-nc-company-are-indicted-for-falsifying-visas-in-guest-worker-program/2014/02/20/f30b1a1a-9985-11e3-b931-0204122c514b_story.html (last reviewed June 15, 2015).

13 Minute Sheet for Proceedings Held in Open Court on Sept. 30, 2009, De Leon-Granados v. Eller & Sons Trees, Inc., No. 1:05-cv-01473-CC (N.D. Ga. Sept. 30, 2009) (striking class opt-out forms and prohibiting defendants from discussing case with class members without leave of court). The court later ordered Eller to pay $11.8 million to the 4,000 guestworker class members. Press Release, Southern Poverty Law Center, SPLC wins record $11.8 million judgment for guestworkers in suit against forestry company (Oct. 30, 2012), http://www.splcenter.org/get-informed/news/splc-wins-record-118-million-judgment-for-guestworkers-in-suit-against-forestry-co (last reviewed June 15, 2015).

14 2d Am. Compl. at ¶ 4, De Leon-Granados, Rec. Doc. 389-3 (July 22, 2010).

15 See, e.g., EEOC Procedures: Requesting EEOC Certification for U Nonimmigrant Classification (U Visa) Petitions in EEOC Cases, http://www.eeoc.gov/eeoc/foia/u_visa.cfm (last reviewed June 10, 2015).