The United States Guestworker Program: The Need for Reform
PDF · Elizabeth Johnston · Jul-5-2012 · 43 VAND. J. TRANSNAT'L L. 1121 (2010)
Although often marginalized, guestworkers are an integral part of the United States economy. In 2006 alone, the U.S. government certified visas for 18,736 temporary workers. The program expanded in subsequent years and continues to grow each year. Despite its broad scope, huge impact on the labor force, and the extensive existing legislation regarding it, the guestworker program has permitted most employers of guestworkers to eschew the regulations or find loopholes, resulting in a system that is largely exploitative. Abuse of workers begins in their home countries, intensifies during the period of employment, and often continues even after employment terminates. Workers frequently fail to earn enough money to cover their basic needs while in the United States or to repay the debts they incurred in order to travel to the United States.
The U.S. guestworker program is structured in a way that promotes abuse, exploitation, and injustice. It needs to be amended. First and foremost, new legislation must enhance guestworkers’ access to justice by lifting current restraints on federally funded lawyers and permitting aggrieved workers to remain in the United States long enough to prosecute their claims. Second, the law must hold U.S. employers liable for abuses perpetuated by those acting on their behalf. They cannot hide behind willful blindness and disclaim responsibility for their employees. Third, the Department of Labor (DOL) must begin to adequately enforce the protections in place to prepare employers for legislation enhancing their obligations to their workers. Finally, the legislation must alter the existing balance of power and create a way to ensure that employers fulfill their contractual obligations.