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Mark H. Ayers Headshot

The Height of Audacity

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As a labor leader, I have learned over the years to never underestimate the lengths to which some unscrupulous employers, and some associations and consultants who serve them in the business community at large, will go to squeeze American workers and fatten their profit margins, regardless of the social impact their actions may have. The most recent example comes in the form of a newly issued report by a company called Manpower, Inc., which bills itself as "...a world leader in innovative workforce solutions; creating and delivering services that enable its clients to win in the changing world of work." And those services happen to include "permanent, temporary, and contract recruitment."

I always find it interesting when companies that have a product to sell - in this case worker recruitment - somehow magically produce a report that suggests some sort of emergency or crisis that can be solved by, you guessed it, the services that they provide. And it's even more incredible to me when some "respected" media outlets report it as fact without once ever considering that the source of the report is inherently biased.

In this case, the Manpower, Inc. report to which I refer is titled, "Strategic Migration - A Short-Term Solution to the Skilled Trades Shortage." The report essentially concludes that "Strategic migration is a practical answer to talent mismatches today. Without it, there would simply be no near-term way to alleviate shortages of skilled blue-collar workers."

Now, let me just say three things about this report. First, it is suspect from the start due to its source. Secondly, the brain trust at Manpower, Inc. is apparently unaware that there is 20% unemployment right now among the skilled trades in the United States (and in many areas of the nation, the rate is above 30% and sometimes 40%). Third, the term "strategic migration" is simply a more elegant way to say that American employers - not all American employers, mind you, but a significant number of them - are chomping at the bit to ease immigration restrictions for guest workers so that they can pay less for skilled craft labor.

The news of the release of this report undoubtedly foreshadows the ratcheting up of pressure on American lawmakers to expand the guest worker programs under the federal H-1B and H-2B visa programs, as well as further expand the L1 Intra-Company transfer visas. This increased pressure stems from the disappointment of the U.S. Chamber of Commerce and other business organizations over the fact that the issue of comprehensive immigration reform was placed on the back burner this year by the U.S. Congress. The next logical step for the business community would be to manufacture a "crisis" in order to get Congress to pass a massive expansion of flawed guest worker programs. The stated view of the Chamber and the business community at large on the issue of guest workers is that the "market" should determine the number of visas and, of course, the market is defined by employer demand.

The abuse of the H-2B visa program gets very little attention, yet it is an issue that has wide-ranging effects on the wages and working conditions for skilled craft workers all across the United States; in similar fashion to the escalation of "employee misclassification" in the construction industry which is now reaching epidemic proportions and wreaking havoc on workers, communities and many state's already-dire fiscal troubles (due to the significant drop-off in tax revenues caused by this shameful practice).

Until recently, employers and unscrupulous labor brokers who used the H-2B visa program to exploit foreign workers and drive down community wage standards have operated in the shadows. But today, thanks to watered down application and enforcement provisions, these parasitic "visa vultures" are free to ply their unscrupulous trade out in the open. Hence, the Manpower, Inc. "report."

Hundreds of billions of dollars have been appropriated by the federal government over the course of the last two years for the purpose of jump-starting our national economy. Many of the jobs that are being created by the stimulus bill are in the construction trades. And with an industry unemployment rate that continues to hover at 20% nationally, the last thing we would think possible is for U.S. employers to claim that there are not enough American welders, electricians, boilermakers and other skilled craft workers available to fill these jobs. Rather, these employers believe that there are not enough skilled craft professionals who are willing to work for the starvation wages they would like to pay, and for which they can find willing foreign workers.

Just like the scourge of abuse occurring in the Gulf Coast region, where some employers continue to engage in the abuse of the H-2B visa program. Their modus operandi typically involves mis-advertising for lower-skill workers at the lowest level of wages (Levels 1 and 2 as defined by the H-2B program) when in actuality the jobs require much higher skill levels. By advertising for a lower class of skill, these employers are virtually guaranteeing that they won't get a pool of "qualified" American workers. For example, they will advertise for a lower-skill "production welder" rather than a "construction welder" for a job in shipyard, knowing full well that any welder that works in a U.S. shipyard must pass a certification test.

The United Association of Plumbers and Pipefitters (UA) has done a remarkable job of exposing this travesty. They have had qualified union members apply for these lower wage jobs, and when the employer finds out who they are and examines their stellar qualifications, these applicants are simply never contacted. Over the last couple of years throughout the Gulf Coast, the UA has successfully stopped over 12,000 individual job placements from going forward because of such fraudulent advertising practices.

And this comes on the heels of another employer in the Gulf Coast who, in 2007, fraudulently submitted applications for 6,000 foreign H-2B visa workers to work on re-building the petrochemical industry in that region after the devastation of Hurricanes Katrina and Rita, when many American workers in that region were desperate for work. Of the 6,000 applications for welders, 3,000 were targeted for the Motiva Refinery, 1,500 for Valero, 1,000 for Total Petrochemical & 500 for ExxonMobil. The State Workforce Agency killed this application after complaints from local building trades unions in that area, along with newspaper stories and investigations. With so much fraud involved it is unfathomable that not one single person went to jail or was even charged for filing forged documents and falsified applications!

If that's not enough, you could point to the example of late 2006, again along the Gulf Coast, where U.S. and Indian recruiters defrauded more than 500 Indian workers of $20,000 each for an American dream--promises of good work and green cards--but delivered to them instead temporary visas binding them to one employer, along with deplorable conditions at Signal International shipyards, and constant threats of deportation from the company.

Or, the example in Los Angeles, CA where it was discovered that Jacobs Engineering was seeking H-2B visas to import several hundred workers to fill skilled craft positions at a Los Angeles refinery. And in Florida, where the quick action on the part of our State Building and Construction Trades Council thwarted attempts by Blackhawk Marine to obtain H-2B visas for 400 foreign national workers in the Tampa area.

The list of these types of abuses goes on and on.

It is time that American lawmakers were reminded that their job is to protect the sanctity of American community standards and the interests of American workers. It is long past time for the federal government to initiate rapid regulatory reform of the H-2B process in order to require State Workforce agencies to review employer applications for H-2B temporary labor certifications and to revoke regulations that authorize employer "attestation;" to put an end to three-year "temporary" labor certifications for the construction industry; and to debar from the H-2B program for up to three years any employers, attorneys, or agents who commit willful violations of its requirements.

We are on the verge of experiencing tremendous investment in America's domestic energy sources - including oil, gas, nuclear, solar, wind, and geothermal. And we are hopeful that the Congress will soon devote some attention to the state of our crumbling infrastructure. In each instance, there is the potential for substantial job growth for American skilled craft workers. And the joint labor-management skilled craft apprenticeship training infrastructure that our unions operate, and which is funded by approximately $1 billion annually in private monies, is fully prepared to meet the challenge of developing this workforce.

As stated in the Labor Movement's Framework for Comprehensive Immigration Reform, one of the great failures of our current employment-based immigration system is that the level of legal work-based immigration is set arbitrarily by Congress as a product of political compromise - without regard to real labor market needs - and it is rarely updated to reflect changing circumstances or conditions. This failure has allowed unscrupulous employers to manipulate the system to the detriment of workers and respectable employers alike. The system for allocating employment visas - both temporary and permanent - should be de-politicized and placed in the hands of an independent commission that can assess labor market needs on an on-going basis and - based on methodology approved by Congress - determine the number of foreign workers to be admitted for employment purposes, based on labor market needs.