GEALE: Back to indentured servitude

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By Nicholas C. Geale

COMMENTARY:

The Obama administration's immigration proposals are both bad policy and cynical politics - harming our economy and our workers while turning foreign workers into indentured servants.

The Labor Department revised out-of-date rules - some dating back to the Johnson era - for temporary foreign agricultural workers, called H-2A visas, in December 2008. The old rules were cumbersome and costly, thereby actually encouraging farmers to hire illegal immigrants. The results? An estimated 600,000 to 800,000 foreign agricultural workers were employed here, but only about 75,000 H-2A visas were issued in 2007. The rest are presumably here illegally and therefore susceptible to subminimum wages and dangerous, unsanitary living and working conditions. Aside from the affront to our values, such conditions can drive down wages and impair working conditions for American citizens - to say nothing of the unpaid taxes from the illegal employment.

So, the Labor Department went through the legally required process to reform the rules. The goal: Farmers can hire temporary workers when no U.S. workers are available and when the foreign workers are appropriately protected. The new rule established enhanced penalties for violations and new tools to ensure compliance, including audits and substantial fines - up to $100,000 for serious injury or death of a worker. The prior rule had a maximum fine of $1,000 - essentially a large speeding ticket for potentially killing someone. Then-Rep. Hilda L. Solis, California Democrat, along with the Food and Commercial Workers Union and a public interest group known as Farmworker Justice, opposed these regulations on various grounds - arguing instead for legislation called AgJobs. Farmworker Justice, in fact, sued and lost an emergency attempt to stop the Labor Department's H-2A reforms in federal court in January.

AgJobs is cynical and arguably anti-American. It legalizes illegal workers after a small fine of a few hundred dollars. Anyone who worked five months in agriculture in the prior two years is eligible for legalization, including those facing judicial deportation orders. That would mean 600,000 to 800,000 new permanent U.S. residents plus their families - many of whom probably have a limited education, speak little English and may not even be immunized against communicable diseases. AgJobs also makes these workers less well-off financially by arbitrarily slashing their wages across the board.

The December 2008 reforms set minimum wages according to local market rates so the temporary workers can take care of their families while in the United States and return to their home countries with a nest egg. Under AgJobs' cuts, U.S. taxpayers will inevitably have to subsidize the workers' housing, health care or children's schooling while they remain on the path to citizenship.

Not content, however, to simply make these people generally dependent on government for basic services, AgJobs also indentures them for up to five years of servitude picking crops - despite the 13th Amendment.

Leaving aside the obvious racial connotations, that's a shockingly un-American concept. What could possibly be the reason for intentionally creating second-class citizens and exploiting them for years? Answer: to ensure they become a reliable government-dependent constituency.

Similarly, the Food and Commercial Workers Union, which has a membership of U.S. citizens who may lose opportunities as a result of AgJobs, supports the bill. Apparently, unionizing new workers and expanding union power is more important than looking out for current citizen members.

Now, one of AgJobs' biggest supporters is President Obama's secretary of Labor, Ms.Solis. She recently proposed suspending the 2008 H-2A reforms and reinstating the ancient rules, notably decreasing maximum fines for causing a serious injury or death to a mere $1,000. Unbelievably, she tried to do this under cover of darkness through a 10-day public comment period - which certainly doesn't support the Obama administration's promises of increased transparency and openness.

Indeed, last year, while a senator from Illinois, Mr. Obama suggested an extra 90 days beyond the initial 45-day comment period was needed to review the H-2A reform proposals. Unsurprisingly, the department's current actions run afoul of minimum requirements for comment periods under the Administrative Procedure Act. The department's actions also, perhaps intentionally, create wholesale chaos in the farming industry where it remains unclear what to do to secure legal workers for this year's crops as there may be two different requirements.

As a result, honest farmers are confused, hundreds of thousands of undocumented workers continue to work illegally and may become citizens, and the nature of America's moral promise to temporary workers is altered by a cynical plan to legally indenture them - all with virtually no public debate.

Ms. Solis should come to her senses and not repeal common-sense reforms - changes that prevent worker mistreatment and reduce incentives for illegal immigration - just in order to pick up a new voting constituency.

Nicholas C. Geale, an attorney, is the former senior counselor to the deputy secretary at the U.S. Department of Labor.