FOR IMMEDIATE RELEASE
August 29, 2007

CONTACT
Ana Avendaño, AFL-CIO, (202) 637-3949; [email protected]
Laurie Gindin Beacham, ACLU, (212) 519-7811; [email protected]
Stella Richardson, ACLU-NC, (415) 621-2493; [email protected]
Marielena Hincapié, NILC, (213) 674-2812; [email protected]

AFL-CIO, ACLU and National Immigration Law Center Challenge New Homeland Security Rule

Groups File Lawsuit Charging DHS Rule Would Cause Widespread Discrimination and Harm U.S. Citizens and Other Authorized Workers

SAN FRANCISCO — The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) and the Central Labor Council of Alameda County, along with other local labor movements, today filed a lawsuit charging that a new Department of Homeland Security (DHS) rule will threaten jobs of U.S. citizens and other legally authorized workers simply because of errors in the government’s inaccurate Social Security earnings databases. The rule violates workers’ rights and imposes burdensome obligations on employers who receive Social Security Administration (SSA) “no-match” letters that inform an employer of alleged discrepancies between employee records and the SSA database.

Under the new rule, many U.S. citizens and legally authorized workers could be required to be terminated if their erroneous SSA records are not fixed within 90 days of an SSA “no-match” letter being sent to an employer. The rule is scheduled to go into effect on September 14. SSA intends to send out notices to employers enforcing the new rule beginning next Tuesday, September 4. The new notices will be sent to approximately 140,000 employers, affecting about eight million employees.

“This rule is a new tool to repress workers’ rights in the name of phony immigration enforcement,” said John Sweeney, President of the AFL-CIO. “Employers have used SSA “no-match” letters to fire workers when workers try to organize, when they report a wage claim or workplace hazard, or when they get injured. The new rule gives employers a stronger pretext for engaging in such unlawful conduct.”

Currently, under the Immigration and Nationality Act (INA), employers must verify the immigration status of employees upon initial hire, using a process carefully crafted by Congress. The new rule would upset the careful balance struck by Congress that does not impose continuing verification obligations or seek to hold employers liable based on SSA records.

The new DHS rule imposes liability based on failure to respond to an SSA “no-match” letter, even though SSA errors are caused by many innocent factors such as typographical errors and name changes due to marriage or divorce, and the use of multiple surnames, which is common in many parts of the world. According to the Office of the Inspector General in SSA, 12.7 million of the 17.8 million discrepancies in SSA’s database — more than 70% — belong to native-born U.S. citizens.

“The new rule turns the law on its head by using the notoriously incomplete and inaccurate Social Security databases to decide who is authorized to work. This will wreak havoc with workers and businesses and will cause massive discrimination against anyone who looks or sounds ‘foreign,’” said Lucas Guttentag, Director of the ACLU’s Immigrants’ Rights Project. “DHS is trying to hijack the Social Security system for improper immigration enforcement.”

Under the current system, employers submit records of employee earnings to SSA so that workers can receive credit for their earnings. Sometimes an employee’s name and Social Security number do not match the information in SSA’s enormous and error-prone database. In that case, a report is placed in SSA’s Earning Suspense File, which is protected by tax privacy laws. The database currently contains more than 250 million unmatched records, a substantial portion of which belongs to U.S. citizens and lawfully working non-citizens.

When a database discrepancy occurs, SSA sends “no-match” letters to certain employers advising them of such. In the past, the letters have been purely advisory and clearly state that they do not “make any statement about an employee’s immigration status.” Indeed, SSA has recognized in the past that the issuance of a “no-match” letter does not indicate that an employee is not authorized to work, and when SSA has been able to resolve mismatches, most turned out to involve U.S. citizens.

Under the new DHS rule, however, an employer who receives a “no-match” letter is required to give the employee 90 days to resolve the data discrepancy with the huge SSA bureaucracy, a formidable challenge. If the employee is unable to do so, the employee must complete a new employment verification form, using identification documents with a different Social Security number. If the worker insists the original number submitted is correct but cannot resolve the discrepancy by the deadline, DHS requires the employer to take “reasonable steps” that might include firing the employee.

Rather than go through this burdensome process, some employers are likely to simply fire workers whose names appear on the letters — including U.S. citizens and other authorized workers — without giving employees a chance to correct the information, said the groups that filed the lawsuit. Unscrupulous employers will simply ignore the letter and continue to employ undocumented workers.

“It is truly ironic that the DHS calls this rule a ‘safe harbor,’” said Marielena Hincapié, Staff Attorney and Director of Programs at NILC. “Its real effect would be to create a devastating ‘storm’ of bureaucratic challenges, increased discrimination, potential financial ruin for workers, and improper and burdensome obligations upon employers. And we know from years of experience in dealing with ‘no-match’ letters that unscrupulous employers will use the new rule to legitimize their adverse employment actions against workers exercising their labor rights.”

The lawsuit requests a court order preventing DHS and SSA from implementing the new DHS rule, including the initial mailing of “no-match” letter packets scheduled to go out to employers on September 4, until a decision on the rule’s legality can be reached. The lawsuit also requests a finding that the rule is invalid.

The lawsuit was filed today in the United States District Court for the Northern District of California.

In addition to the AFL-CIO, which is represented by the law firm of Altshuler Berzon, LLP, other parties bringing the lawsuit include the Central Labor Council of Alameda County, represented by the ACLU, the ACLU of Northern California, and NILC, as well as the San Francisco Labor Council and the San Francisco Building and Construction Trades Council, represented by Weinberg, Roger and Rosenfeld.

In addition to Guttentag and Hincapié, lawyers on the case include Stephen Berzon, Scott Kronland, Jonathan Weissglass, Linda Lye and Danielle Leonard of Altshuler, Berzon; Jonathan Hiatt, James Copess and Ana Avendaño of the AFL-CIO; Jennifer Chang, Mónica M. Ramírez, and Omar Jadwat of the ACLU Immigrants’ Rights Project; Alan Schlosser and Julia Mass of the ACLU of Northern California; Linton Joaquin and Monica Guizar of NILC; and David Rosenfeld and Manjari Chawla of Weinberg, Roger and Rosenfeld.

For a copy of the lawsuit visit www.aclu.org or www.aclunc.org, and www.nilc.org.

FOR IMMEDIATE RELEASE
May 17, 2007

CONTACT
Adela de la Torre, NILC, (213) 674-2832; [email protected]
Tracie Washington, Louisiana Justice Institute, (504) 390-4642
Mary Bauer, Southern Poverty Law Center (334) 296-0728
Colette Tippy, New Orleans Workers’ Center for Racial Justice (504) 881-6550

H-2B Guestworkers Win Landmark Decision in Suit against Luxury Hotel Chain

Ruling is one step in the struggle to end modern-day slavery, say victorious plaintiffs

NEW ORLEANS — After more than a year of mass meetings and company intimidation of workers, 82 Latin American guestworkers obtained a precedent-setting legal victory this week that provides relief to tens of thousands of foreign guestworkers on H-2B visas who typically are forced to pay exorbitant fees to obtain low-wage, temporary jobs in the United States.

U.S. District Judge Eldon E. Fallon, of the Eastern District of Louisiana, ruled that nonagricultural guestworkers who come to the U.S. under H-2B visas are entitled to the same protection under the federal Fair Labor Standards Act (FLSA) that all other workers in the United States enjoy. The judge has not ruled on damages.

The defendant in the case, hotel tycoon F. Patrick Quinn III, president of Decatur Hotels LLC, and hundreds of other employers across the hurricane-wracked Gulf Coast and throughout the nation are taking advantage of guestworkers to obtain cheap labor. Many look the other way as guestworker recruiters rob migrant workers of hundreds of thousands of dollars.

The ruling in Castellanos-Contreras, et al., v. Decatur Hotels, LLC, et al., is an important precedent for the more than 100,000 H-2B guestworkers who enter the United States legally each year and serves as a strike against a system that members of the newly formed Alliance of Guestworkers for Dignity describe as “modern-day slavery.”  The Alliance is a guestworker-led organization dedicated to challenging the rampant abuse in the guestworker program and to fighting for the rights of all workers in post-Katrina New Orleans.

Lured by false promises made by aggressive labor recruiters working closely with Quinn, the Decatur workers incurred great debts to obtain New Orleans hotel jobs in the wake of Katrina, only to find themselves held captive by a visa program that ties them to one employer. The workers, who were economically desperate in their home countries, sought better opportunities in the United States and plunged their families into debt when they each had to pay labor recruiters between $3,500 and $5,000.

“I worked in Mr. Quinn’s hotels for next to nothing because I had to earn enough money to make back what I paid to get here,” said Jose Sanchez, plaintiff in the case and worker leader in the Alliance of Guestworkers for Dignity. “Even though I was so tired at the end of the day, I would go to the meetings at night because I knew that this was important not just for our group, but for all guestworkers in the U.S.”

The plaintiffs are represented by the Southern Poverty Law Center, National Immigration Law Center and civil rights attorney Tracie Washington, president of the Louisiana Justice Institute.
They are working closely with the Alliance of Guestworkers for Dignity, a project of the New Orleans Workers’ Center for Racial Justice.

“This is a tremendous victory for all workers of color in New Orleans who for too long have been exploited by unscrupulous employers in the service industry,” said Tracie Washington. “We will continue to fight on their behalf until we achieve true worker justice in New Orleans.”

As part of a larger guest worker organizing campaign spearheaded by the Alliance of Guestworkers for Dignity, workers from Bolivia, Peru and the Dominican Republic met secretly over three months as they organized a meeting to hold Mr. Quinn accountable but he refused to meet their main demands which included the reimbursement of the money they paid to labor recruiters in order to work for him.  As a result of his refusal, they filed the lawsuit in August 2006 alleging that defendants violated the FLSA when the company failed to reimburse them for the inflated costs of their trip to New Orleans, including airfare, visa processing costs and other travel expenses. Following Hurricane Katrina, when the defendants were housing Katrina survivors, most of whom had just lost their jobs, the defendants filed an application with the U.S. Department of Labor (DOL) to bring in guestworkers, certifying that there were no U.S. workers willing or able to do the job. Decatur Hotels, aiming to find the cheapest labor possible, used a chain of unscrupulous recruiters to import an estimated 300 guestworkers with promises of 40-hour workweeks and plenty of overtime. Instead, those workers found themselves working about 25 hours a week and sometimes far less, with no way to pay back the debt they had incurred.

“The systematic abuse of guestworkers, who are mostly poor, begins in their home countries, where they are forced deeply into debt to pay outrageous fees simply for the right to work for less than a year at a time in the United States,” said Mary Bauer, director of the Southern Poverty Law Center’s Immigrant Justice Project. “This puts them in a desperate situation if their employer cuts their hours or abuses them in other ways, because under U.S. law, they cannot seek alternative employment.”

This decision comes at a critical time as Congress and the White House are designing an expanded temporary worker program as part of larger immigration legislation.

“As President Bush and Congress seek to expand the temporary worker program, this and other organizing efforts by guestworkers across the Gulf Coast have unveiled the brutal realities of the H-2B visa program,” said Saket Soni, Lead Organizer of the New Orleans Workers’ Center for Racial Justice.

Attorney Marielena Hincapié, director of programs with the National Immigration Law Center, praised the workers who “organized themselves and courageously came forward to demand that they enjoy the same protections under U.S. labor laws.  In doing so, they have exposed the almost nonexistent monitoring by the DOL and the lax labor law enforcement that plagues the current H-2A and H-2B visa system.”

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FOR IMMEDIATE RELEASE:
August 16, 2006

CONTACT:
Adela de la Torre, NILC, (213) 674-2832; [email protected]
Tracie Washington, Louisiana Justice Institute, (504) 390-4642
Mary Bauer, Southern Poverty Law Center, (334) 296-0728
Saket Soni, New Orleans Worker Justice Coalition, (773) 550-9339

Guest Workers Charge Racial Exploitation, File Federal Suit Against Luxury Hotel Chain in New Orleans

One Year After Katrina, Guest Workers Expose Hotelier’s Scheme To Profit From Immigrant Labor While Excluding African Americans

NEW ORLEANS — Latin American workers brought a federal lawsuit today against one of New Orleans’ wealthiest hotel owners, who lured them through false promises and charged them thousands of dollars in fees to fill jobs held by New Orleanians prior to Hurricane Katrina.

Eighty-two guest workers allege that Decatur Hotels, LLC and its president, F. Patrick Quinn III, violated the Fair Labor Standards Act when the company failed to reimburse them for the exorbitant fees paid to aggressive labor recruiters working as agents of the hotel chain. Decatur
owns about a dozen luxury hotels in New Orleans and is one of the largest locally owned hotel chains in Louisiana.

To pay labor recruiters in their home countries, workers from Peru, Bolivia and the Dominican Republic plunged their families into debt. Recruiters charged between $3,500 and $5,000 to bring workers to New Orleans under the federal government’s H-2B “guest worker” program.

“Four thousand dollars is a lot of money in Peru,” said Humberto Jimenez, one of the hotel workers. “I mortgaged my house to work for Patrick Quinn. I came here to make enough money to see my child through college. If I had known the truth I would never have come.”

Recruiters under Quinn’s employ promised workers 40 hours of work per week and plenty of overtime. Instead they found themselves working about 25 hours a week, sometimes far less. “They told me I would find the American dream. I found no dream here. All I have here is debt and nightmares,” said one worker, holding a pay stub. “I earned $18.08 in two weeks. What kind of dream is that?”

Under current immigration law these guest workers are bound to their employer and unable to legally work for anyone else. “They’re on a dead-end road,” said Mary Bauer, attorney for the Immigrant Justice Project of the Southern Poverty Law Center. “Their profound debt makes them desperate to work – but Decatur doesn’t give them enough hours. And if they switch jobs, they’re breaking the law. In effect, they are captive workers in a situation of virtual debt peonage.”

Said Teresa Ortiz, another worker, “It’s modern-day slavery. What are my options? I go home to Bolivia, poorer than when I got here and deeper in debt. Or I break the law to find another job.”

Tracie Washington, a local civil rights attorney, said, “This guest worker program is a continuation of the racial exploitation that began with slavery in this country. It’s corporatedriven. Decatur profits from it. And it’s state-sponsored. The Department of Labor signs off on it.”

To recruit these guest workers, Decatur had to certify to the U.S. government that it could not find U.S. workers to fill these jobs. Indeed, in its request for labor certification, Decatur claims to “have offered work to hurricane evacuees” but that “no one applied.” In a recent meeting with Quinn, guest workers asked for proof that Decatur recruited among African American Katrina evacuees. “He said he would not give us proof,” said Luis Chavez. “He has none. When I started work I said to my manager. ‘This is New Orleans – why are there no Black people working here?’  The manager said, “Because Black people don’t like to work.’ ”

“Guest worker programs are wedge policies that divide African Americans and immigrants,” said Saket Soni of the New Orleans Worker Justice Coalition. “At a time when the unemployment rate in the New Orleans metro area is 7.2 percent these guest workers are lured here and locked into exploitation. Meanwhile African American survivors are locked out of the hotel industry even as they struggle to return home and regain their lives a year after Katrina.”

This competition over jobs is being fueled by employers like Decatur and the government agencies that have failed to enforce labor laws. “These courageous workers are exposing guest worker programs as an opportunity for predatory employers to seek out and exploit cheap labor,” said Marielena Hincapie, Director of Programs at the National Immigration Law Center. As guest worker programs are increasingly seen as the answer to future migration, Hincapie cautioned against expansion of a historically flawed system.

“The solution is for all workers to be afforded decent work opportunities with a living wage in the just reconstruction of the Gulf South,” said Tracie Washington.

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