Under the thick humid blanket of a New Orleans summer day, local and migrant workers collect at gas stations on the avenues of Carrollton and Elysian Fields. Some hold hard hats and eagerly look out onto the road. Some chat with one another—a more enjoyable way to pass the time while they wait, wait and wait in the hopes that a subcontractor will drive by and offer employment. Some days are good, but many are not.
And today, the BP oil spill has added new complications to these workers’ lives, creating opportunities for worker exploitation and labor rights violations.
On its face, much of this story isn’t unlike the experience of many workers throughout the United States. But this is New Orleans, and the tale of how these workers got here is quite different.
Almost five years ago in this same city, deserted and weathered sailboats sat lopsided against the curbs of city streets. Packs of abandoned dogs ran rampant throughout Orleans Parish. Road medians were used as parking lots and traffic lights blinked red—a signal to stop to most people, but to post-Katrina New Orleanians it simply meant slow down long enough to avoid hitting pedestrians.
New Orleans at the time was a no-man’s land—a place where lawlessness was commonplace and where thousands of foreign workers found themselves in debt bondage. With their visas and travel documents confiscated and their pay withheld, these workers were threatened with unlawful eviction, arrest and deportation. And even though they were unpaid, the workers were charged exorbitant fees for housing, food and even the use of work equipment. Some faced physical threats and were kept confined by armed guards.
With national tensions over immigration simmering, businesses exploited the immigration status of those they wooed to New Orleans for work. Today, though, many of those men and women who faced indentured labor are bringing cases against the recruiters and U.S. companies that brought them to New Orleans and exploited them after the storm.
It should not be surprising that lax enforcement of labor laws in a devastated area allowed illicit contractors to flourish. But the priority placed on rebuilding the city also turned the federal government into an agent for what was, in effect, human trafficking.
In the aftermath of Katrina, the Department of Homeland Security suspended the immigration-enforcement requirement of employers to confirm employee eligibility and identity for a 45-day period. The Occupational Safety and Health Administration of the Department of Labor (DOL) also temporarily suspended the enforcement of job safety and health standards in hurricane-affected counties and parishes in Florida, Alabama, Mississippi, and Louisiana.
And most troubling of all, then-President George W. Bush temporarily suspended the Davis-Bacon Act, which guarantees fair wages for public works projects. The result: a lifting of wage restrictions for nearly two months.
The former president’s father, George H. W. Bush, took similar action in the aftermath of Hurricanes Andrew and Iniki in 1992. The rationale for suspending the act was the same in 2005 as it was in 1992: keep down construction costs that are to be paid by the federal government, on the grounds that this would expedite the rebuilding process.
There’s no evidence that the suspensions sped up rebuilding. But what did happen is clear. They created a climate in which wage exploitation and discrimination could proceed unchecked; and it allowed employers to exploit undocumented workers willing to work for less than the local workforce.
Take the case of Decatur Hotels, a New Orleans company that operates eight hotels in the city. According to Jacob Horowitz of the Alliance of Guestworkers For Dignity, hotel workers making $10 per hour were fired and replaced by undocumented workers who earned $8 per hour. In turn, these employees were replaced by 300 Peruvian, Bolivian and Dominican guestworkers on H-2B visas—a temporary visa designated for foreign non-agricultural workers—for a salary of $6 per hour.
More poignantly, the guestworkers—after paying fees of up to $5,000 to a Decatur Hotels recruiter—were threatened with deportation by the company. The guestworkers won their suit against Decatur Hotels before New Orleans’ U.S. District Court for the Eastern District of Louisiana for violation of the Fair Labor Standards Act (FLSA) in May 2007.
However, the hotel successfully appealed the decision. The 5th Circuit of Appeals concluded that employers do not have liability to guestworkers under the FLSA, and thus Decatur Hotels did not have to reimburse the workers for recruitment fees, visa fees or transportation costs. The guestworkers responded by filing a motion for a rehearing with the 5th Circuit. In May 2010, the case was reheard before a full court, and a decision was pending when this magazine went to press.
The temporary suspensions and the overall lack of enforcement were significantly compounded by poor Labor Department enforcement. In fact, the department’s investigations in New Orleans dropped from 70 in 2004 to 44 in 2006. This was further exacerbated by the fact that until 2008 the DOL insisted it did not have the authority to enforce H-2B regulations of the guestworker program, creating an opportunity for employers and contractors to get away with abuses.
To date, at least 3,750 persons in the Gulf Coast region have been identified as potential victims of human trafficking for the purposes of forced labor following Hurricanes Katrina and Rita—704 of these cases are in the New Orleans Metro area alone. Nine cases are in various stages of civil suit and/or under investigation by the Department of Justice (DOJ). One case was settled in 2008, and three cases were won by the plaintiffs in 2007, 2009 and 2010.
Of the cases won, one lost on appeal but was reheard in May 2010. The defendants in another case have filed an appeal that is still pending. At the same time, the federal government is investigating some of these cases for criminal offenses under the Trafficking Victims Protection Act of 2000 (TVPA).
Nearly all of the alleged cases involve holders of temporary visas including H-1B, H-2B and H-2A. The victims were teachers, skilled laborers and agricultural and hotel workers. All of them were imported to aid the rebuilding process, whether through teaching Louisiana students or helping with basic rebuilding projects such as demolition or repair of New Orleans’ storm-damaged buildings.
In one Orleans Parish case, Thai H-2A agricultural workers were forced to live and perform demolition on storm-damaged New Orleans buildings under the watch of an armed guard by their employer, Million Express Manpower. Although they were not paid, the workers had to pay their employer for food. Without money to buy food they set traps to catch pigeons to eat.
These workers won a default judgment against all defendants in the case in 2009. But “efforts to obtain the actual money damages are ongoing,” said Lori Johnson, the victims’ counsel and attorney for Legal Aid of North Carolina.
Another notorious case—currently being investigated by the DOJ for criminal offenses under the TVPA—involved 361 Filipino teachers brought to Louisiana school districts under the H-1B visa by Universal Placement International (UPI) from June 2007 to August 2009. In an administrative determination, the Louisiana Workforce Commission (LWC) determined that UPI and its owner, Lourdes Navarro, were in direct violation of Louisiana law. UPI was ordered to repay the teachers an estimated $1.8 million in illegally charged placement fees as well as a $500 fine and $7,500 in attorney fees. In May 2010, UPI filed an appeal to the LWC decision.
Get up, Stand up
A number of exploited laborers in New Orleans have begun to take action. With the help of the New Orleans Workers’ Center for Racial Justice (NOWCRJ), they created the Alliance of Guestworkers For Dignity. Together the alliance and NOWCRJ have helped to push forward multiple civil suits against companies such as Decatur Hotels, Signal International, Bimbo’s Best Produce, Five Star Contractors, and Knights Marine & Industrial Services, as well as to retrieve illegally confiscated passports from employers.
Members of the alliance forged a coalition not only to protect themselves from exploitation but also to ensure that they have a strong relationship with local residents. “One of the founding principles of the alliance is that the workers will not accept being pitted against other low-wage workers—whether undocumented workers or New Orleans residents,” said the Alliance’s Jacob Horowitz.
When Matt Redd of Louisiana Labor, LLC withheld his workers’ passports, local residents and members of the alliance worked together to ensure that the Calcasieu Parish Sheriff’s Office retrieved the passports from Redd and returned them to the workers. “There was an exchange where the workers spoke with community members about what their jobs were like and the labor that they were doing,” said Horowitz. “The community members said ‘that is what our ancestors faced and we are here to fight alongside of you.’”
The Oil Spill and New Labor Violations
The Deepwater Horizon explosion has once again placed labor rights at risk in New Orleans. Not only is the oil spill threatening the Louisiana coastline for generations to come; it is also affecting tens of thousands of fishermen. Many of them—now unable to pursue their livelihoods—are working with BP on the cleanup. As time passes, the treatment of these fishermen and immigrant community members is worryingly similar to what workers experienced post-Katrina.
For example, according to attorney Stuart Smith of Smith Stag LLC of New Orleans and a representative of Gulf Oil Disaster Recovery, Louisiana fishermen participating in the cleanup were initially required to sign a contract with BP that contained a liability waiver that indemnified BP from accidental damages. Moreover, BP demanded that the fishermen add BP as an additional insured under the fishermen’s insurance policies to minimize BP’s responsibility for damage done to a fisherman’s boat or injuries sustained by crew members.
Judge Ginger Berrigan, who presided over a case brought before the U.S. District Court for the Eastern District of Louisiana on May 2, 2010, found the language in the contract to be overly broad.
One consistent labor violation during the post-Katrina cleanup that continues to be an issue is worker safety. According to the Louisiana Environmental Action Network, workers performing the BP cleanup have not been provided with appropriate protective gear even though BP has agreed to ensure that workers are properly trained in hazmat protocol and are provided all necessary equipment.
Although they are given gloves and suits, cleanup workers are not provided with any respiratory protective gear by BP despite the toxic chemicals involved. What’s worse, fishermen have been told by their BP superiors that they will be fired for wearing a respirator or any safety equipment not provided by BP.1
For New Orleans, the BP oil spill is another example of the opportunity for the exploitation of vulnerable workers. Disasters, whether natural or man-made, create desperation and opportunity. And with them come the risk that unscrupulous employers will seek to take advantage. In these cases, it is the responsibility of legal authorities and community groups to step into the void. Fortunately, this has started.