Guest worker litigation gains ground.

Immigrant workers who were recruited to work in the United States on temporary visas but did not receive the compensation or treatment they were promised can recover more than back wages, a federal judge in Oklahoma has ruled. (Chellen v. John Pickle Co., 2006 WL 2456946 (N.D. Okla. Aug. 22, 2006).)

U.S. District Court Chief Judge Claire Eagan, who had earlier issued a verdict including back wages and punitive damages, increased the award by $52,000 to include emotional distress damages--$1,000 for each of the 52 high-tech welders, fitters, electricians, and engineers from India who accused a Tulsa factory of deceiving them about the terms of their employment and violating their civil rights.

The John Pickle Co.--which, before closing down in 2002, designed and manufactured products for the petrochemical and power industries--and its owner, John Pickle, were found liable for fraud, false imprisonment, and civil rights violations under [section] 1981 of the Fair Labor Standards Act (FLSA) and Title VII of the Civil Rights Act.

"The court concludes that the job assignments, restrictions on [the workers'] freedom, privacy, communications, and worship, along with the living conditions created an oppressive, hostile, and abusive working environment for the Chellen plaintiffs," Eagan wrote in her 71-page opinion.

The company had recruited the workers from India in 2001 under the federal government's "guestworker" program--which allows citizens of foreign countries to obtain temporary authorization to work in the United States. The government issues various types of visas whose requirements differ according to the nature of the employment.

John Pickle allegedly promised the Indian workers good wages and generous overtime pay; free food, living accommodations, insurance, and medical services; a U.S. driver's license (for those with Indian licenses); a cell phone; and a job for at least two years. The plaintiffs claimed that the company instead paid them less than minimum wage, housed them in guarded factory dormitories in poor condition, rationed their food, and confiscated their immigration documents so they could not leave the country.

"The hostile work environment [John Pickle] created for the Chellen plaintiffs and the disparate treatment afforded them, was intentional and discriminatory," Eagan wrote. "Punitive damages may not deter these defendants from malicious and willful conduct based on the race or national origin of future employees, but it may serve to deter other employers from attempting the same."

The case is the first to hold an employer civilly liable for human trafficking under Title VII, said Robert Canino, regional attorney in the Dallas district office of the U.S. Equal Employment Opportunity Commission (EEOC), which represented the plaintiffs.

"Private and government attorneys will be able to cite to [Chellen] or rely on it as authority or argument for the position that even where a case might not rise to the level of a criminal prosecution, employers who have violated federal laws may still be prosecuted to obtain civil law remedies," Canino said.

Lawyers for the company had argued that the factory was allowed to pay the workers low wages because they entered the United States on B-2 visas--intended for guest workers who come to this country to acquire skills as "trainees." The EEOC countered that these immigrants were highly trained workers, not trainees, and that the company had tried to skirt labor and wage laws by improperly procuring for them B-2 visas--which can be obtained more quickly and easily than the H-2B visas required for immigrants who want temporary work as "employees."

Even the H-2B program has been under scrutiny by immigrant workers' advocates. The Southern Poverty Law Center (SPLC) in Montgomery, Alabama, recently filed a lawsuit against Decatur Hotels on behalf of 82 guest workers from Latin America who came to work in the post-Katrina reconstruction of New Orleans on H-2B visas. The class action alleges that Decatur and its president, E Patrick Quinn III, violated the FLSA by failing to reimburse the workers for the fees they paid to secure the visas and travel to the United States.

"It's disheartening that these abuses seem so systematic," said Mary Bauer, an attorney for the SPLC's Immigrant Justice Project. "Specifically in industries that rely on guest workers, abuse seems to be the norm instead of the exception."

Like the workers from India, the Decatur workers--from Peru, Bolivia, and the Dominican Republic--fell into debt because they were promised reimbursements and good wages. They each paid $4,000 to $5,000 to recruiters working as agents for the hotel chain, Bauer said, often leaving property deeds or other forms of collateral because Decatur promised them 40 hours of work per week, plus generous overtime. Their lawsuit claims that they got only 25 hours a week, and sometimes less. Under their H-2B status, the workers are bound to Decatur and prohibited from working for anyone else, Bauer added.

Melissa Crow, an attorney with the Washington, D.C.-based National Immigration Law Center, cocounsel in the case, noted that a large number of unemployed hurricane evacuees, most of them African-American, were overlooked for jobs that Decatur gave the guest workers.

"There's a fundamental problem in that former African-American workers are locked out of work and the immigrant community is locked into work," Crow said. Employers recruiting guest workers under the H-2B program must prove that they could not find U.S. workers willing to do the job.

The Decatur plaintiffs, citing the FLSA, are seeking reimbursement for the fees they paid the recruiters. "The litigation is really a tiny piece of a program of empowering workers to demand that their employers respect their rights," Crow said.

In September, the SPLC settled a class action filed on behalf of H-2B guest workers against Idaho-based forestry company Alpha Services. In addition to paying damages, Alpha agreed to stop requiring deeds, deposits, or collateral as a condition of employment and said it would allow the SPLC to conduct periodic audits of the company's compliance with federal laws that protect migrant workers. It also agreed not to withhold workers' immigration documents and not to retaliate against workers in any way.

The center has brought three similar class actions on behalf of H-2B guest workers against forestry companies for violations of minimum wage, overtime, and migrant-worker protection laws. Another is pending against Del Monte Fresh Produce on behalf of Latin American guest workers brought to Georgia through the temporary agricultural visa program commonly known as the H-2A program. These suits seek unpaid wages and an unspecified amount in other damages.