UNTIED FARM WORKERS CONTINUES TO SUPPORT H-2 VISA

UNCLAS SECTION 01 OF 03 MEXICO 000723

C O R R E C T E D C O P Y (ADDED GUATEMALA AS INFO)

SIPDIS

DEPT FOR DRL/AWH AND ILSCR, CA/VO, WHA/MEX AND USDOL FOR
ILAB AND ETA

E.O. 12958: N/A
TAGS: ELAB ECON CVIS EAGR PGOV SOCI PINR MX
SUBJECT: UNTIED FARM WORKERS CONTINUES TO SUPPORT H-2 VISA
FARM LABORS FROM COLIMA

REF: 08 MEXICO 3493

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1. SUMMARY: In 2008 a large group of laborers were recruited
from the Mexican pacific coastal state of Colima to do farm
work in California and Iowa. According to the United Farm
Workers (UFW) union, the Colima laborers entered the US with
the hope of working there legally after complying with all of
the requirements needed to receive H-2A visas.
Unfortunately, upon their arrival in the US the UFW says that
their employers failed to abide by the terms of their
contractual agreement with the workers. As a result the UFW
contracted the services of two labor rights advocacy firms to
file a class action suit on behalf of the Colima laborers.
Ultimately the law firms hope to have about 100 laborers take
part in the suit. Mission Mexico,s Labor Counselor recently
traveled to Colima to meet with representatives of the law
firms and learn more about the basis for their legal action
on behalf of the aggrieved farm laborers. The law firm
representatives have started working with the GOM,s Foreign
Ministry on this matter and they expressed their gratitude
that the USG was also interested in seeing justice done for
the Colima laborers. For the law firm representatives this
case was mostly a matter of defending their clients. For the
UFW this case holds greater significance as an indication of
some of the problems with the H-2A visa program. END
SUMMARY.

COLIMA WORKERS EARN LESS THAN PROMISED

2. In July 2008 roughly 200 agricultural laborers were
recruited from the Mexican pacific coastal state of Colima to
work on farms in California and Iowa (Reftel). The workers
were recruited by a relatively inexperienced labor contractor
who, allegedly with the consent of various US employers,
promised them the full range of housing, meals and salary
benefits as stipulated under applicable H-2 visa provisions.
For the laborers the best thing they thought they had been
promised was a guarantee of earning USD 100 per day and a 40
hour workweek for a period of at least six months. In order
to obtain the jobs promised by the recruiter the workers were
all required to pay USD 600 to cover visa processing and
travel costs. Unfortunately for the Colima workers, it
appears that none of the promises made to them were kept.

3. Upon arrival in the US the laborers were reportedly
placed in substandard housing, provided meals that consisted
of little more than beans and were rarely, if ever, given the
40 hours of work per week they had been promised. In some
cases the laborers were never offered the full-time
employment they had been promised; in other instances they
were reportedly not paid in full for the work they actually
did. With the help of the United Farm Workers (UFW) union
the workers were organized into a group that would ultimately
be represented by the California Rural Legal Assistance
Foundation (CRLA) and the Texas Rio Grande Legal Aid, Inc.
(TRLA). These two labor rights advocacy firms have filed a
class suit against the recruiter and the US employers on
behalf of the Colima workers to obtain the promised wages and
benefits. The case was filed in the California Eastern
District Court on August 20, 2008. The defendants listed in
the case are: &SGLC, INC., Cesar Hugo Ibarra Ceja, Abraham
Jimenez Bueno, Jaime Lopez Ramos, Salvador Gonzalez, Julian
Gonzalez and Salvador Gonzalez dba Salvador Gonzalez Labor
Contractor.8 SGLC, Inc. is a firm that largely operates in
the areas of Galt and Clarksburg, California. The H-2
petition number in this case is: WAC 0818-251501-012.

4. The UFW, CRLA and TRLA all attempted to enlist the
assistance of the GOM and the state government of Colima to
help the workers obtain some form of redress for their
grievances. For the most part these efforts have been
unsuccessful with respect to the state authorities in Colima
but, this past January, the GOM,s Foreign Ministry began
working with CRLA and TRLA to look into the workers
complaints. Unfortunately for the workers the support of the
GOM, while welcome, did not come until all of them had
ultimately returned home to Mexico. In, the end workers were
forced to pay their own way home, having earned less than the
net cost of their original outlay for coming to work in the
US. Moreover, upon their return to Mexico many were
allegedly threaten by agents of the original recruiter as
well as by Colima state government authorities to withdraw
from the class action suit or be forever banned from the
possibility of obtaining legal employment in the US.

THE WORKERS AND THE LAWYERS

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5. When the CRLA and TRLA originally took up the case of the
Colima laborers their client group consisted of some 35
workers. That group has now grown to just over 50 workers
and the two farm labor advocates hope to have a group of
approximately 100 by the time the case is ready for trial.
In most such cases the workers who apply to do farm labor in
the US are nearly almost always men but in this case, perhaps
because the laborers were able to legally enter the US on
H-2A visas, some 15 percent of them were women. As noted
above the laborers were recruited to work in California and
Iowa. While the overwhelming majority of the workers were
sent to California the criteria used for determining which
workers went where seemed to be more a function of when they
signed up to go. There does not appear to be any significant
difference in the treatment either group received; which is
to say neither group received the wages or benefits they were
promised.

6. In connection with a mass meeting with aggrieved workers
in Colima organized for the CRLA and TRLA by the Foreign
Ministry, Mission Mexico Labor Counselor met with the two
head labor lawyers involved to get their assessment on the
status of the case. The two farm labor advocates were
guardedly optimistic about the prospects for this particular
suit but indicated that what happened to the Colima workers
was not unique. Such things as failure to pay the minimum
wage, breach of contract, violations of labor and housing
laws and failure to comply with the Fair Labor Standards Act
were problems the labor advocates indicated they had often
seen before. In representing the workers the labor advocates
repeatedly asked Labor Counselor for advice on what could be
done to prevent future abuse by unscrupulous recruiters and
employers.

7. The most common problem the labor advocates described
was a threat that workers who stood up for their legal rights
would be falsely accused of failing to abide by the terms of
their H-2A visa and consequently banned from ever again
working legally in the US. This, the labor advocates said,
was exactly what was happening in Colima and while they did
not seem overly concern about being able to help this
particular group of workers they were clearly searching for
some way they could advise other workers to take preventive
action to ensure their fair access to the H-2A visa program
in the future. When asked why this particular case might be
easier to champion than some others the labor advocates
indicated that the amounts involved where not that large. If
everything went their way and they won everything they were
asking for the most any aggrieved worker would get would be
around USD 10,000. This is might be a lot for the workers
but not for most large Argo-businesses. The CLRA
representative did not rule out the possibility that an out
of court settlement could be reached in this case.

UFW WANTS TO PROTECT WORKER ACCCES TO H-2A PROGRAM

8. Over the course of a series of phone calls and emails
with a UFW official prior to traveling to Colima Mission
Labor Counselor got the impression that union did not
specifically blame the recruiter for what happened to the
Colima workers. However, the official opined that the
situation with the Colima workers might never have happened
if the H-2A visa program had more effective oversight. Such
oversight, he averred, might have prevented someone like the
inexperienced recruiter from ever being authorized to
contract foreign laborers in the first place.

9. Of equal and perhaps greater concern to the UFW than the
amount of oversight being given to the H-2A program was the
fact that there appeared to be a concerted effort to prevent
the Colima workers from pursuing their grievances via the US
legal system. According to the UFW representatives of the
Colima state authorities have repeatedly threatened the
complaining workers to try and get them to withdraw from the
class action suit. The workers are being told that they will
be blacklisted and prevented from ever being able to receive
an H-2A visa unless they immediately halt their involvement
in any legal action against the recruiter or the US
employers. The UFW had hoped that the involvement in this
case of the GOM,s Foreign Ministry would send a clear
message to desist to whoever was threatening the workers in
Colima. Unfortunately, during the recent visit to Colima,
Mission Labor Counselor saw no indication that the state
authorities had been approached or in any way asked to help
resolve this case.

COMMENT

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10. In Mission Mexico Labor Counselor,s discussions with
the UFW the union steadfastly expressed its firm support for
the H-2 visa program but said that as currently implemented
it was causing problems on both sides of the border with the
situation in Colima being a good example. The two farm labor
advocacy firms focused more on the problems of their clients
in this particular case than they did on the broader
functioning of the H-2 program but they clearly were aware of
how the threat of denying access to the program was a
reoccurring dilemma for agricultural workers from Mexico.
Although it may appear that the recruiter and whatever US
businesses it represented were the one completely at fault
this case may not be that simple. Anecdotal information
suggests the recruiter may not have done a particularly good
job of matching up workers with businesses that actually
needed agricultural laborers. This entire matter seems be
have been handled in a fashion where the recruiter focused on
getting the workers to the US legally and just assumed that
potential employers would be beating down their door to get
the laborers. Once that did not happen no one really knew
what to do with the workers the recruiter had on hand. From
talking to the UFW, the CLRA, the TRLA and listening to the
workers involved in this case there appears be a clear need
for H-2 visas and a strong desire by the unions, the workers
and even the GOM to find a way to make it work.

11. This message was cleared with AmConsul Guadalajara.


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