Attachment to Incident Report Form DL 1 - 156 I. The North Carolina Employment Security Commission and the Employment and Training Administration continue to approve H-2A job orders despite evidence the job orders overstate the number of workers needed. I am writing this Incident Report as a result of recent conversations with David Craig, ESA Farm Labor Specialist with the U.S. Wage and Hour Office in Raleigh, North Carolina. On Friday, August 24, 2001, I visited the Wage and Hour office in order to pick up several copies of the MSPA poster. I then spoke to Mr. Craig concerning the recent ESA Task Force/ H2A Investigation findings in North Carolina. I learned, among other things, that the ESA Task Force found growers who were listed on NCESC/ETA approved master job orders who not only did not employ H2A workers but did not even intend to apply for foreign labor. Farmworker advocates have repeatedly attempted to work with both the ETA and the ESA regarding false assurances in ETA approved job offers for the North Carolina Growers Association, (NCGA). Among other problems, the NCGA overstates the number of foreign workers needed. The resulting oversupply of labor contributes to illegal immigration as the foreign workers in North Carolina find the promised work is not available. Further, U.S. workers are adversely affected when the H-2A workers, finding no approved work available, seek nonH2A work for lower wages than U.S. workers would be willing to accept. I have addressed this concern to no avail in my quarterly reports submitted through my ESC supervisors to the ETA. A. The NCESC/ETA approves orders containing false requests for foreign labor which create an artificial oversupply of foreign workers The NCESC/ETA’s failure to comply with pre-certification requirements has resulted in NCGA orders being approved which overstate the number of foreign workers actually needed. Recently, the ESA 2001 Task Force, under the direction of David Craig, found that individual growers named in NCGA orders approved by NCESC/ETA had not requested "... any, or in most other cases were employing considerably fewer H2As than noted on ETA's Master H2A Job Orders". The ESA’s findings that growers listed on approved NCGA orders had no H2As or employed substantially fewer H2As than stated in the job order is especially inexcusable when considering that the ESA Investigation took place during the peak activity periods when labor needs are greatest. Certain individual NCGA grower members were taken aback when they were told by ESA investigative staff that they were listed on approved ETA Master Job Orders as needing a larger number of foreign workers than they requested. David Craig mentioned that most NCGA grower members were extremely upset when they were told, by ESA staff, that they had signed a form with NCGA allowing NCGA to recruit farm workers on their behalf , and that they were jointly responsible for ESA/H2A type violations. David mentioned that NCGA grower members were angry to find that , because they are included on the ETA Master Job Order, they are liable for paying their U.S. workforce no less than the adverse effect wage rate. 1 The number of H2A Job Order Certifications issued by ETA appears to be based on "statewide total housing capacity". On the other hand, ETA certifications should be carefully based on the number of workers requested/needed per member grower, for specific time durations on specific Job Orders with each member grower's worker housing identified on each corresponding H2A Job Order. Additionally, farm worker advocates contend that fewer H2As are needed than in previous years because of recent declines in tobacco production. Yet, where 75% of all NCGA Growers primarily need only tobacco workers, the number of H2A workers sought has not declined. B. The NCESC and ETA approve orders with a false period of employment which further contributes to the oversupply of foreign workers Virtually all tobacco work is over by mid to late September. Yet, job orders set forth a period of employment which runs through November. Farm worker advocates argue that Job Order contains false starting and ending dates for most member tobacco growers. Lori Elmer, an attorney with North Carolina Legal Services has repeatedly presented the ETA with evidence that NCGA clearance orders are being approved which do not accurately reflect work availability. Specifically, Ms. Elmer cited North Carolina Department of Agriculture statistics which show that tobacco work ends by the mid to late September. Yet, job orders which were mainly for work in tobacco had a period of employment that extended through November. Individual growers with no other crop but tobacco nonetheless state early November as the end date for their labor needs. Workers who “abandon” or are terminated at the close of the tobacco season forfeit their right to paid return transportation and the three quarter guaranty. 1 This higher pay rate being the (AWER) hourly pay rates of $7.06 per hour for N.C. H2A Job Orders. Ms. Elmer noted in her December 12, 2000 letter to ETA staff Ray Bramucci (later forwarded to Anna Goddard) that false periods of employment:2 1. denied workers their return transportation money. Ms. Elmer noted that the resulting unpaid travel monies could amount to over a million dollars per year. 2. contributed to illegal immigration. 3. acts as a deterrent to U.S. workers, creating an “adverse effect”. On January 11, 2001, farmworker advocates raised the false period of employment as an important issue to H2A workers in North Carolina in a meeting in Raleigh, North Carolina with Alfred Perry of ESA. Present at this meeting were lawyers from Legal Services of North Carolina, Sister Evelyn Mattern of the North Carolina Council of Churches, and Melinda Wiggins of Student Action with Farmworkers.3 Carol Brooke of the North Carolina Community Development and Justice Center, together with Ms. Elmer, also raised concern over false periods of employment in a June 11, 2001 meeting with ETA Regional Administrator, Anna Goddard. As state Monitor Advocate, I have addressed this concern in quarterly reports; see report for the quarter ending September 30, 2000 as submitted to former ETA Regional Administrator Toussaint Hayes. Upon information and belief, the ETA has not responded in any meaningful manner and NCGA clearance orders continue to require all workers to remain until November regardless of work availability. C. The oversupply cannot be adequately monitored due to the employers’ failure to report abandonments and terminations. The combination of (1) overstating the number of workers needed and (2) providing a false period of employment creates an oversupply of labor. Workers either abandon the labor camp or are terminated when no further work is available. Prior GAO and OIG audits found that there has been high a high percentage of H2A worker abandonment. 4 2 Ms. Elmer’s letter concerned several matters on which the ETA has disregarded its duty under the H2A regulations and, instead, taken a non-enforcement stance. Other issues included the ETA interpreting North Carolina law, the ETA’s failure to enforce a regulation designed to protect workers against retaliation and intimidation, 20 C.F.R. 655.103(g) and continued ETA approval of job orders requiring workers to attend an “exit interview”. 3 Other concerns addressed at this meeting include; the NCGA failure to report abandonments and terminations, NCGA’s failure to pay workers for an orientation/training and exit interview, NCGA’s unauthorized baggage limit and required use of NCGA mail carrier service, and NCGA intimidation of workers regarding Legal Services in violation of 20 C.F.R. 655.103(g)(4). 4 The 1997 GAO report noted that for one unnamed employer (one might presume NCGA) approximately 40% of the workforce left early, which “raises some concerns about whether the employer accurately estimated the ending date of need.” While tobacco labor needs have since The ESA 2001 Task Force found that there is a high rate of abandonment and, moreover, that the NCGA and its grower members were not reporting worker abandonment/ terminations to Local ESC offices. All H2A worker terminations and abandonment are to be reported within 48 hours to SESA’s as required by a USDOL/ETA National Office Directive. GAL 1-01 10/30/00. Mr. Craig informed me that he advised several NCGA members to immediately start reporting worker terminations and abandonment's to their local area NCESC office. According to INS/H2A related regulations at 8 CFR Part 214.2(C)(vi) and (C)(ix) , the NCGA, as the Joint Employer , prior to ETA's issuance of replacement foreign labor certifications, is required to pay the INS a penalty of $210.00 per H2A worker who the NCGA can not demonstrate returned to Mexico within 5 days prior to the H2A Job Order employment ending. To my knowledge there has been no compliance by NCGA in regards to paying the $210.00 INS penalty . Without the legally required reporting, then, when H2A workers abandon employment, instead of the job loss acting to correct the oversupply, the ETA and INS reissue NCGA member growers replacement certifications, maintaining oversupply. Unfortunately, NCESC/ETA does not work with the INS to ensure NCGA's compliance on reporting requirements prior to issuing NCGA replacement foreign labor certifications, thereby acting to maintain an oversupply of foreign labor. D. Motivation There are several monetary incentives for the NCGA to request more workers than are needed for foreign labor certifications. 1. The oversupply contributes to workers abandoning or being terminated from work. When H2As abandon, or are terminated from work, then they forfeit their right to receive transportation reimbursements and the three quarter pay guarantees. Nonetheless, the NCGA receives from growers up front approximately $200 per worker for return transportation funds. Workers only get that money if they stay the season. With the oversupply, the extra workers quit or are fired and the NCGA keeps the $200/head. 2. NCGA transfers the recruitment costs to the workers. Farm workers who come as H2A workers pay a variety of “fees” to various NCGA agents. Each additional Mexican National who pays exorbitant prices for passports and visas further dropped overall, the ratio of tobacco workers to sweet potatoes workers within NCGA increased, accounting for the current estimation by farmworkers advocates, as supported by examination of the clearance orders, of approx. 80%. supports the NCGA recruitment/transport system and frees the NCGA from paying as much to its recruiters and other agents, regardless of whether the Mexican Nationals find that any work is available after arrival. It is common knowledge among farm worker advocates that Mexican Nationals are paying $700.00 to $1000.00 just for a chance for being on a list for H2A Job Order employment with NCGA. 3. Amidst a surplus, workers may be easily replaced and thus have less value. The basic supply and demand analysis applies here. The existence of a motive, nonetheless, is immaterial. The H2A regulations do not require any proof of intent. E. ESA should also do more on this matter. ESA could verify that information set forth in the job order was false through payroll review/audits of H2A employer records by USDOL ESA/ETA. However, David Craig has informed me that ESA has completed its Task Force and will not further investigate false information on NCGA master job orders, as approved by the NCESC/ETA. As David Craig stated very clearly, ESA's H2A oversight policy is basically concerned with post-certification/contractual issues. Consequently, no enforcement agency is looking at pre-certification issues, such as false assurances, an overstatement of the number of foreign workers needed and a false period of employment. It is time for the NCESC/ETA to cease to allow immigration fraud through approval of foreign labor certifications for the NCGA which result in a labor oversupply. F. NCESC/ETA are not meeting the level of enforcement required by their regulations. i. The NCESC has failed to make required verifications prior to approving H2A job orders. The H2A Master Job Orders, prior to being issued foreign labor certification by ETA, must first be signed off by William “Bubba” Grant, NCESC Agricultural Services Supervisor. Subsequently H2A Master Job Orders are signed off by ETA's Alien Labor Certification staff in Atlanta. In providing foreign labor certification, the NCESC and the ETA are attesting that the following regulatory actions have been taken: 1. The local, intrastate, and interstate farm labor markets have been adequately tested for U.S. worker availability through (a) the filing of Job Orders for recruiting and (b) referring of U.S. workers to fill NCGA's/H2A Master Job Orders. 2. The H2A Job Orders and the specific/ pre employment/ post employment practices of the employer/s listed on the H2A Job Order have not and will not adversely effect similarly employed U.S. farm workers. 3. Each grower listed on specific Master H2A Job Orders has designated migrant housing on the same Job Order for a specific number of workers that he/ she is requesting to house. 4. The farm worker housing listed on each separate Master H2A Job Order stands alone and has received a pre-occupancy inspection and approval by the NCDOL Migrant Housing Division. It was obvious from my conversations with David Craig, that NCESC and ETA are not requiring an adequate showing that the four assurances listed above are being complied with prior to granting foreign labor certification for the North Carolina Growers Association. The result, as evidenced by the ESA Task Force findings, is that more foreign workers than needed are being provided work visas. ii. NCESC/ETA are not discontinuing services as required by the H2A regulations. The H-2A regulations mandate the ETA to discontinue services to employers who submit false assurances unless the employer remedies the false assurance. Employers who file H-2A labor certification applications must include a job offer with the terms and conditions required under 20 C.F.R. §653.501(d)(2). The employer must include the assurance that all the material terms and conditions of the job, including the anticipated period of employment, are true and accurate. In her December 12, 2000 letter to Ray Bramucci, (a copy was later provided the ETA Regional Administrator Anna Goddard), Ms. Elmer noted that ETA’s failure to take action against the inaccurate period of employment and stated: “The ETA has the responsibility to ensure that the labor certification application, complies with H-2A regulations. 20 C.F.R. §653.501 provides, in relevant part: ‘If the ETA or a State agency discovers that an employer’s job order contains a material misrepresentation, the procedures in subpart F of part 658 of this chapter shall be followed.” (emphasis added) The cited subpart provides that the agency shall initiate procedure for discontinuation of services to employers.” The H2A regulations do not provide the ETA discretion on whether or not to discontinue services to employers who, like the NCGA, make material misrepresentations. The regulations mandate action. Nonetheless, almost a year after Ms. Elmer’s letter was received, the ETA not only has declined to discontinue services for the NCGA, but the ETA has yet to demand accurate terms and conditions of employment. PROPOSED ACTION 1. NCESC/ETA must verify that the number of foreign workers requested on specific H2A Job Orders actually matches the actual number of workers to be employed as required under 20 C.F.R. §653.501. • • • Use of resource materials such as the North Carolina Department of Agriculture’s annual Agricultural Statistics would be useful in determining actual labor need. (e.g. one can easily verify that it is unreasonable for a tobacco grower located Nash county to be requesting workers through November 5.) The ETA must cease to allow the NCGA practice of having each individual grower in a master order repeat the master order dates as the date of need regardless of the individual growers needs (e.g. a tobacco grower nonetheless states his dates of need as 04/15/01 – 11/05/01) The ETA could more easily verify actual work availability if each individual grower reported his actual labor need, (e.g. 04/30/01 – 09/05/01). The ETA should refrain from approving any job order containing material misrepresentations about the period of employment, as mandated by 20 C.F.R. §653.501(d)(2). 2. NCESC should conduct frequent “Field Visits” to H-2A employer farm sites and target employers with whom there have been a history of problems, such as the NCGA. These visits would be in addition to the routine Field Checks on agricultural job order sites. These visits would serve to verify actual employment compared to employment needs as set forth in the job order. These visits would be most useful in March and early April and later in September and early October. 3. ETA and ESA must share information through a Regional Farm Labor Coordinated Enforcement Committee.5 Although required to exist under 29 C.F.R. §42.6, there is no active Regional Farm Labor Coordinated Enforcement Committee. The Regional Committee is to annually prepare, on a regional basis, a migrant farm labor strategy for each protective statute. The ESA, through examinations of payroll, has found growers with high worker turnover or who did not actually request workers. The names of these specific growers should be reported to the ETA. 4. NCESC must improve its review of NCDOL’s specific employer housing inspections so that available employer housing which has had a preoccupancy inspection matches what is set forth in the master job orders. 5 This Committee was originally called for in Judge Richey’s decision in NAACP v. Brennan. 5. ETA is now mandated, under 20 C.F.R. §653.501, to investigate what it has “reason to believe” (e.g. as a result of the ESA investigation) to be a material misrepresentation. ETA should begin by informally contacting various NCGA grower members such as Mr. Gerald Coggin, a Nash County grower mentioned in the below report. One could then ask Mr. Coggin and other NCGA member growers if they requested and or received any H2A workers last year and years prior. Then one could easily compare NCGA's H2A job orders filed with NCESC and ETA for the last two/ three years. Mr. Coggin's telephone number is 252-459-9958 or 252-459-8987. I will gladly provide my ESC superiors or ETA staff with names and telephone numbers of other NCGA grower members to call for H2A Job Order validity status checks. On the other hand, it appears that ETA may want to start better partnering with INS for ensuring NCGA's and USDOL compliance with INS/H2A regulations at 8 CFR Part 214.2. If ESC Management requires that I investigate the purged Master Job Orders filed by NCGA for last year, I will need their authorization because these orders are most likely kept by Bubba for three years, or by the Raleigh Local Office for at least one year after the job order was closed. II. NCESC IS NOT PROTECTING U.S. WORKER APPLICANTS FROM DISCRIMATION. The discrimination present in North Carolina has two layers. First, employers discriminate against U.S. workers in favor of foreign workers. Second, one finds more traditional types of discrimination within the foreign workforce, (e.g. gender and age discrimination). A. Discrimination against U.S. workers. The discrimination against U.S. workers rears its ugly head when U.S. workers seek NCGA jobs. It can play out in various forms ranging from the subtle, (refusing a seasonal farm worker work near his home) to the overt (Puerto Rican workers arrived in North Carolina to be “greeted” with an armed police force wearing security vests, as arranged by the NCGA). I have repeatedly filed reports documenting how poorly U.S. workers were treated during the referral process. i. The June 28, 2001 Incident out of the Rocky Mount Office A U.S. worker sought work as a farm worker under an NCGA job order on June 28, 2001 through the Rocky Mount ESC office. The NCGA interviewed the worker by phone, and then required the ESC officer to read aloud the entire job order. After she did so, NCGA agent Ken White kept the ESC officer on hold for some time without speaking to her, then informed her and the applicant that the conversation was being recorded. During Mr. White’s conversation with the applicant, he tried to deter the applicant from taking the position. The interview lasted 30 minutes, an absurd amount of time for determining whether one is able to do farm work. To compare, H2A workers are not interviewed prior to being able to take the position. Even if a few basic questions are asked, it is not the thirty minute ordeal this poor man endured. I reported this in an incident report. In response, William “Bubba” Grant determined that the issue was resolved because, not surprisingly, the applicant ultimately did not show, [although Bubba did note that he thought he and the NCGA “had worked out these issues in the past”.] It is not acceptable to dismiss the incident merely because the NCGA were successful in scaring the applicant away. Given that logic, the more outrageous offense results in a more immune offender. ii. The July 26, 2001 Incident out of the Rocky Mount Office On July 26, 2001, a U.S. worker visited the Rocky Mount office and voiced interest in a job covered in an NCGA order. Again, after waiting a day to be interviewed, he was interviewed for more time than needed to verify that he is able to do farm work. In addition, while this seasonal farm worker expressed interest in work near his home in Rocky Mount, the NCGA would only provide work in Snow Hill, North Carolina. This meant an additional 30-35 minute commute time each way. The NCGA has fifteen employers in the Rocky Mount area which had a total 476 job openings. Yet, even though the NCGA had numerous growers in the Rocky Mount area, and could have placed him at a more convenient location, it chose instead to make the taking of the job more difficult for the U.S. worker by requiring a long commute. It is reasonable to assume that the foreign workers at the Rocky Mount job sites had no similar compelling reason to be placed at a Rocky Mount farm over a Snow Hill farm. On August 1, 2001, I reported this incident as an Apparent Violation of the ETA/H2A Regulations. [The applicant’s car broke down as he drove to the job site on the first day.] iii. Americans need not apply. “Americans need not apply” was a caption from an article by reporter Barry Yeoman as it appeared in the weekly periodical The Independent. The same article appeared in Mother Jones.6 I submitted a copy of this article in my 6 The “Americans need not apply” header appeared only in the Independent version. Quarterly Report for the quarter ending December 31, 2000. Yeoman focused on how poorly U.S. workers who seek employment at NCGA jobs are treated, and how few U.S. worker applicants are provided work on H2A farms. Yeoman wrote: “In 1999, the state found jobs on non-H2A farms for 12,700 domestic workers. By contrast, on H-2A farms, the state found jobs for only seven workers.” Yeoman did not limit his article to North Carolina, but also discussed the treatment of domestic workers in Georgia, where H2A clearance orders go through the same Atlanta regional ETA office. Yeoman wrote about a U.S. worker, Sandra Arizmendi, who had worked picking onions for Bland Farms of Reidsville, Georgia until she was replaced by H2A workers in 1999.7 B. The H-2A workforce is composed of virtually all males and a disproportionately high number of young males under forty years old. Given the lack of USDOL enforcement when U.S. workers are discriminated against, the employer is, in practice, given an outright choice of whether to hire a U.S worker or an H-2A worker. There are already financial and other incentives for hiring the foreign worker. However, the preference for foreign workers is made even greater by the fact the employer knows that, by hiring the foreign worker: 1. he gets a male worker; 2. he doesn’t have to bother with family housing, and; 3. he is more likely to get a young worker.8 This reality reinforces the motivation for discriminating against U.S. workers. III. THE NCESC/ETA CONTINUES TO APPROVE JOB ORDERS FOR EMPLOYERS WITH HISTORIES OF WAGE VIOLATIONS AND PHYSICAL ABUSE, IN VIOLATION OF THEIR OWN REGULATIONS. A. 7 Employer L.C. Honeycutt should not have been approved for This same article also quoted U.S. District Judge Michael Ponser, who summarized the lack of USDOL enforcement of H2A employers as follows: “The fact is, when workers’ rights are violated, no one gets sanctioned.” 8 In Reyes Gaona v. NCGA, the Mexican H2A applicant had applied through a defendant employment company in Mexico for work with defendant NCGA. He was informed in Mexico that the NCGA would not hire him since he was over 40 and had not worked for them before. The District Court granted the defendants’ Motion to Dismiss and the Court of Appeals affirmed, not because the plaintiff wasn’t discriminated against on the basis of age, but instead because of “extraterritoriality”, where the court found the discriminatory act took place outside the United States. A petition for cert.has been filed. additional guestworkers after pleading guilty to criminal assault of an H2A worker. Last year H-2A employer L.C. Honeycutt pled guilty to criminal assault against his employee, Patrocinio Juarez. The assault stemmed from Mr. Juarez’ complaints about pesticide problems. In addition, NCDOL Migrant Housing Division cited Mr. Honeycutt for, among other things: failure to provide toilet and handwashing facilities; failure to provide cups for drinking water; failure to provide pesticide training to employees where employees mix pesticides; and failure to maintain copies of required material safety for hazardous chemicals in the workplace. I reported Mr. Honeycutt’s actions in my Quarterly Report for the quarter ending December 31, 2000 and included a related newspaper article by Associated Press reporter Estes Thompson. In June, 2001, attorneys Carol Brooke and Lori Elmer met with ETA Regional Administrator Anna Goddard in Atlanta. Specifically, they discussed the Honeycutt case. Shortly thereafter, however, the NCESC/ETA decided to continue to provide services to Mr. Honeycutt and provided him foreign labor certification for 2001 despite notification from North Carolina Legal Services and others of the guilty plea and the citations.9 I have been told that DOL solicitor Harry Sheinfeld specifically reviewed the matter and required that Honeycutt receive certification. B. Employer Evergreen Forestry Services has a pattern and practice of substantial violations and no job order for this employer should be approved again. Certain investigative functions have been delegated by the Secretary of Labor to the Regional Administrator of the ETA. DOL policy on guestworkers is clarified at 20 C.F.R. 655.110, which sets forth that the Secretary of Labor is required to deny certification if the employer has committed a substantial violation which is significantly injurious to the wages, benefits and working conditions of 10% or more of the employer’s workforce and ... the employer has engaged in a pattern or practice of such acts.10 Evergreen Forestry of Sandpoint, Idaho is an H-2B employer with numerous prior histories with ESA. 9 NCDOL’s Regina Luginbuhl, who oversaw the field safety investigation, awarded Mr. Honeycutt later that year with the “Gold Star Grower” award, an award supposed to be given to growers who can serve as examples of model behavior. 10 This regulation speaks specifically to H2A employers where Evergreen is an H2B employer. Nevertheless, the clear purpose of the policy is to protect against excessive abuse. How does one reconcile that H2A workers should be protected from abuse while H2B’s are left vulnerable? The ETA, in accordance with the regulations cited above, should have learned about these prior histories through the National and Regional Enforcement Committee Meetings mentioned above and should have immediately discontinued services to Evergreen Forestry. Unfortunately, the Coordinated Committees do not exist and the ETA has yet to discontinue services. Instead, the ETA continues to approve foreign labor certification for an employer with a “pattern and practice” of violations dating back to 1984 and continuing virtually every year since through 2001. During 2001, an NCDOL Migrant Housing Division investigation led to numerous findings and citations against Evergreen and their co-employer Jordan Lumber, who “housed” some of their workers in tents, including but not limited to: 1. Failing to provide electricity to energize heating, cooking and water heating equipment. [No heating, cooking and water heating equipment were provided either]; 2. Untreated solid human waste in both privies. Privies and toilet room not kept in sanitary condition; 3. No adequate hot and cold water for bathing and laundry [only water source was an exterior water faucet hooked to hoses]; 4. Shelter did not protect against the elements; 5. Failure to provide beds.11 When Lori Elmer of North Carolina Legal Services called Floyd Goodman of ETA Atlanta to request information about Evergreen Forestry, he dismissed any housing violations as non-important where Evergreen is an H2B employer.12 It is exactly this non-enforcement attitude that needs to be investigated by the OIG. Former Wage and Hour investigations against Evergreen have resulted in numerous FLSA and MSPA violations, including but not limited to: 1984: FLSA overtime violations. Evergreen agreed to future compliance. 1988: SCA violations and non-payment of CWHSSA Overtime. Untimely payment and non payment to several employees. Evergreen agreed to future compliance. MSPA violations, (no MSPA poster, employees not paid at least semi-monthly, foreman conducting named activity without FLCE registration. 1990: FLSA Minimum Wage and Overtime violations, not recording all hours worked. SCA violation. Evergreen agreed to future compliance. 1992: MSPA violations, civil money penalties in amount of $1750.00. 11 While co-employer Jordan Lumber paid all citations, Evergreen has appealed. Regardless of whether Evergreen had housing duties as an H2B employer, the fact that they provided migrant housing placed them under the purview of the NC Migrant Housing Act. 12 1993: MSPA violations, civil money penalties in amount of $700.00 1993 - 1995: FLSA back wages totaling $8300.00 for failure to pay overtime, regardless of hours worked the workers were paid for 40. MSPA violations. Evergreen agreed to future compliance. 1996-1997: Numerous MSPA violations. FLSA minimum wage violations with back wages amounting to $17, 924.89. FLSA overtime violations resulted in back wages amounting to $139,693.54. Civil money penalty of $12,600.00 assessed and paid. Evergreen agreed to future compliance. 1999-2000 overtime. Numerous MSPA violations. FLSA minimum wage and 2001 There is an ongoing investigation for 2001. ETA’s continued approval of Evergreen Forestry applications [not to mention Goodman’s nonchalant response to learning that foreign workers lived in tents in the North Carolina mountains in winter] shows a complete disregard for 20 C.F.R. 655.110. Evergreen Forestry has exactly the “pattern and practice” anticipated by the H2A regulations, requiring the ETA to discontinue services in accordance with subpart F of Chapter 658. IV. ESA COULD BETTER ENFORCE THE PROTECTIONS PROVIDED IN THE H2A REGULATIONS. A. ESA must work with ETA in a Regional Coordinated Enforcement Committee. The need for this requirement is set forth above. As a perfect example, the ESA should have shared information about Evergreen Forestry Services with the ETA, so that the ETA then could discontinue services. B. ESA should assess three-quarter guaranty penalties where the grower has not reported abandonments/terminations as required. This will act as an important deterrent to requesting more workers than are needed or using a false period of employment. C. The ESA should enforce the H2A regulations, including 20 C.F.R. 655.103(g) prohibiting retaliation and intimidation. A Human Rights Watch report released on Labor Day, 2000 focused on abuses of H2A workers in North Carolina, stated: “Human Rights Watch found widespread fear and evidence of blacklisting against workers who speak up about conditions, who seek assistance from Legal Services attorneys, or who become active in the Farm Labor Organizing Committee (FLOC).” Farmworker advocates have repeatedly met with ESA to protest the intimidation of H2A workers by the NCGA. On January 12, 2001, farmworker advocates met with ESA Regional Administrator Alfred Perry and discussed, among other things, the ESA’s role in protecting H2A workers against intimidation.13 20 C.F.R. §655.103(g) which states, in relevant part: (g) Retaliation prohibited. The employer shall not intimidate, threaten, blacklist, discharge, or in any manner discriminate against any person who has with just cause: (4) Consulted with an employee of a legal assistance program or an attorney on matters related to 216 of the INA (6 U.S.C. 1186), or this subpart or any other DOL regulation promulgated pursuant to 216 of the INA… The regulation clearly authorizes the DOL to penalize employers who intimidate or threaten workers regarding Legal Services. However, the ESA has not adequately enforced this regulation despite overwhelming evidence of NCGA intimidation including: 1. 2. 3. 4. A wall length poster warning workers against speaking to Legal Service attorneys (Human Rights Watch report) Ordering workers to throw away written material explaining their legal rights produced by Legal Services which workers had consulted (Human Rights Watch report, Charlotte Observer articles, my Quarterly Reports) NCGA agent Jay Hill verbally warns workers against speaking with Legal Services (Human Rights Watch report, Charlotte Observer articles, my Quarterly Reports) Threatening police action when workers consulted with legal assistance employees at the labor camps. (Human Rights Watch report, Charlotte Observer articles) For example, a specific complaint was filed in June, 2001 with the ESA by H2A worker Cesar Guerrero against employer Anthony Smith. This complaint, specifically citing 20 C.F.R. §655.103(g)(4), was submitted to ESA’s David Craig with a copy sent to Hap Perry. The complaint included an affidavit from Guerrero in which he described the facts. Essentially, when Guerrero sought to speak to legal assistance staff, Mr. and Mrs. Smith separately drove up to where the workers were speaking at the labor camp, threatened police action and 13 The ESA’s need to enforce the anti-retaliation/intimidation provisions was again raised in a June 11, 2001 meeting in Atlanta with ESA officials including Alfred Perry and several farmworker advocates including Carol Brooke and Lori Elmer. intimidated Guerrero. ESA did not enforce 20 C.F.R. §655.103(g) as required following this complaint. I have addressed this in my most recent report. Due to the fact that the H2A regulations are incorporated into the contract, a violation of the anti-retaliation provision of the H2A regulations is a violation of the contract. ESA has been repeatedly alerted to these abuses but has not enforced the contract and 20 C.F.R. §655.103(g). V. CONCLUSION For the record, I feel compelled to submit this documented Incident Report, because my function and purpose in government employment is to monitor compliance with federal regulations/laws and through these oversight responsibilities advise my superiors of improving services. To this end, I submit this report for your information and consideration. I also strongly believe that I can not be complicit to fraud through actions or omissions and thereby neglect to submit this report to my superiors. Otherwise, I believe that I would be contributing to violations of serious USDOL regulations concerning adverse effect/discrimination against similarly employed U.S./local farm workers. To this end, the Judge Richey Court Orders against USDOL would be in vain.