I met with my client and his employer this afternoon. Both are complicit in their working relationship. Both are aware that my client has no legal right to be working here and the employer knows he has no right to be employing him.
My client came here originally on an H2-a Visa. It allows ranchers, who allegedly can show they have tried to employ US Citizens under US labor laws without success, to pay extremely low wages to the "guest workers." In the 1990's the wages were about $600-700 a month, plus very basic food rations and austere living quarters--meaning rice, beans, some protein, a tiny sheep herder's cabin and travel to and from their country of origin (usually Peru, Ecuador and a few other countries). There are no other benefits.
These workers basically work from sun up to sun down, seven days a week in dangerous conditions, with few holidays, Sundays and weekends off depending on the employer. Except for recently, the wages had only gone up to $900 a month, but over the next several years, according to the employer, wages will climb to as high $2300 a month with all other conditions remaining the same.
When my client came here over two decades ago, he lost his dominant arm in a grain auger lacking its safety housing (it may not have prevented the injury--but we'll never know). I do not at this time know the reason it was missing. He was paid Worker's Compensation (66% of his wage while recuperating, his medical expenses, and a modest indemnification of about $30,000 for his missing arm). His employer promised him employment for as long as he wanted it and has been true to his word.
The employer has treated my client well (by his standards), paying modest bonuses and conducting himself in a courteous manner.
The only problem is, despite attempting to gain residency or citizenship, my client's visa expired in 2003 and was not renewed. Because of that, he had a dilemma. He could return to his country and be completely impoverished, knowing it would be difficult for him to find work without both arms, or he could remain but then be unable to safely return for visits and travel back to the US because his visa had expired. He chose to stay and his employer kept him on.
Under the law, this strips the employer of the right to pay the suppressed wage rate and subjects my client to deportation, and, as stated, the inability to leave and return.
As often occurs in all morally deficient, repugnant, inequitable or illegal arrangements--master/slave, consignor/indentured servant, landowner/sharecropper, coyote/illegally smuggled immigrant, pimp/prostitute, etc--the relationship becomes one in which one or the other--depending on the consequences of separation or of legal intervention--can exploit the circumstances of the other. It also distorts and corrupts the human interaction between them. Usually, the party with the power is the employer and usually that employer sees himself, whether true or not, (more often true) as playing a benevolent role regardless of the actual circumstances. Yet, I am not unsympathetic to the employer in this case. After all, my client is making more money than he would in his country.
In this case, there is a difference of opinion regarding whether amounts are still due to my client pursuant to federal law. Moreover, although he is currently working, my client probably could not find work from anyone else in the U.S. due to his advanced age, lack of dental and medical care, and his missing dominant arm. Indubitably, he would not find work in Peru. At this stage in his life he feels so exhausted that he doesn't know how much longer he can endure the grind of ranching. He is virtually a prisoner of his circumstances and a slave to the ranch–however benevolent it may seem or be.
Also, he has not seen his family in over ten years and has no family here to speak of. He wants to return to his country but wants to know if he can obtain more benefits or negotiate a pension from his employer. So what does he do? What does the law allow?
He may technically qualify for worker's compensation permanent disability benefits since he is not working in a competitive work environment. But this is not clear due to the fact that he is currently working--even though he is barely holding on. (I can personally vouch for the fact he has been a very hard worker, but I can see the pain in his face and the despair in his eyes from 35 years of hard labor out in the elements). He also has a right to pursue minimum and overtime wages for the past 2 to 3 years, but is reluctant to pursue such a claim that could require his employer to pay a significant amount. Also, the law is not so clear for undocumented workers.
So the question is, who's side do you pick? What is fair under the circumstances, that the law impose its penalty, or that circumstances be left on their own?
It was interesting meeting with both sides at the same time. I got the sense that the employer is an honorable, hard working man, but one who is unable to see things from his employees' points of view, who feels no compunction regarding legal niceties and views himself as above the law. The only law he thinks should apply is the law he negotiates with his servants.
So is my client an illegal alien or an undocumented worker? And is his employer a criminal enterprise or an out of compliance proprietor?
Loren M. Lambert © November 18, 2015
My client came here originally on an H2-a Visa. It allows ranchers, who allegedly can show they have tried to employ US Citizens under US labor laws without success, to pay extremely low wages to the "guest workers." In the 1990's the wages were about $600-700 a month, plus very basic food rations and austere living quarters--meaning rice, beans, some protein, a tiny sheep herder's cabin and travel to and from their country of origin (usually Peru, Ecuador and a few other countries). There are no other benefits.
These workers basically work from sun up to sun down, seven days a week in dangerous conditions, with few holidays, Sundays and weekends off depending on the employer. Except for recently, the wages had only gone up to $900 a month, but over the next several years, according to the employer, wages will climb to as high $2300 a month with all other conditions remaining the same.
When my client came here over two decades ago, he lost his dominant arm in a grain auger lacking its safety housing (it may not have prevented the injury--but we'll never know). I do not at this time know the reason it was missing. He was paid Worker's Compensation (66% of his wage while recuperating, his medical expenses, and a modest indemnification of about $30,000 for his missing arm). His employer promised him employment for as long as he wanted it and has been true to his word.
The employer has treated my client well (by his standards), paying modest bonuses and conducting himself in a courteous manner.
The only problem is, despite attempting to gain residency or citizenship, my client's visa expired in 2003 and was not renewed. Because of that, he had a dilemma. He could return to his country and be completely impoverished, knowing it would be difficult for him to find work without both arms, or he could remain but then be unable to safely return for visits and travel back to the US because his visa had expired. He chose to stay and his employer kept him on.
Under the law, this strips the employer of the right to pay the suppressed wage rate and subjects my client to deportation, and, as stated, the inability to leave and return.
As often occurs in all morally deficient, repugnant, inequitable or illegal arrangements--master/slave, consignor/indentured servant, landowner/sharecropper, coyote/illegally smuggled immigrant, pimp/prostitute, etc--the relationship becomes one in which one or the other--depending on the consequences of separation or of legal intervention--can exploit the circumstances of the other. It also distorts and corrupts the human interaction between them. Usually, the party with the power is the employer and usually that employer sees himself, whether true or not, (more often true) as playing a benevolent role regardless of the actual circumstances. Yet, I am not unsympathetic to the employer in this case. After all, my client is making more money than he would in his country.
In this case, there is a difference of opinion regarding whether amounts are still due to my client pursuant to federal law. Moreover, although he is currently working, my client probably could not find work from anyone else in the U.S. due to his advanced age, lack of dental and medical care, and his missing dominant arm. Indubitably, he would not find work in Peru. At this stage in his life he feels so exhausted that he doesn't know how much longer he can endure the grind of ranching. He is virtually a prisoner of his circumstances and a slave to the ranch–however benevolent it may seem or be.
Also, he has not seen his family in over ten years and has no family here to speak of. He wants to return to his country but wants to know if he can obtain more benefits or negotiate a pension from his employer. So what does he do? What does the law allow?
He may technically qualify for worker's compensation permanent disability benefits since he is not working in a competitive work environment. But this is not clear due to the fact that he is currently working--even though he is barely holding on. (I can personally vouch for the fact he has been a very hard worker, but I can see the pain in his face and the despair in his eyes from 35 years of hard labor out in the elements). He also has a right to pursue minimum and overtime wages for the past 2 to 3 years, but is reluctant to pursue such a claim that could require his employer to pay a significant amount. Also, the law is not so clear for undocumented workers.
So the question is, who's side do you pick? What is fair under the circumstances, that the law impose its penalty, or that circumstances be left on their own?
It was interesting meeting with both sides at the same time. I got the sense that the employer is an honorable, hard working man, but one who is unable to see things from his employees' points of view, who feels no compunction regarding legal niceties and views himself as above the law. The only law he thinks should apply is the law he negotiates with his servants.
So is my client an illegal alien or an undocumented worker? And is his employer a criminal enterprise or an out of compliance proprietor?
Loren M. Lambert © November 18, 2015
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