Needed H 1-B Visa Reform

News from EPIH-1B visa needs reform to make it fairer to migrant and American workers

A new EPI fact sheet outlines the major flaws in the H-1B visa program and the ways in which it can be reformed to make it fairer for both U.S. workers and guestworkers.

The H-1B program provides temporary, nonimmigrant visas for college-educated workers and fashion models from abroad. While it is important to attract high-skilled workers to the United States—many of whom contribute greatly to the economy—the H-1B program has been hijacked. The biggest beneficiaries of the H-1B program are not high tech, innovative companies, but are outsourcing companies that use the visas to replace thousands of U.S. workers with much-lower-paid H-1B workers and have a business model designed to send tech jobs abroad to lower-cost countries.

“The H-1B visa is supposed to bring the best-and-brightest workers to the United States,” said EPI Director of Immigration Law and Policy Research Daniel Costa. “But the truth is businesses like it because it provides a steady supply of workers who they can legally underpay and who can’t speak up about wage and hour abuses.”

H-1B workers are underpaid and easily exploited, as the visa itself is owned and controlled by the employer so an H-1B worker who is fired or laid off for any reason becomes instantly deportable. H-1B workers often pay large fees to labor recruiters, which means that many arrive essentially indentured to their employer, fearing retaliation or termination if they speak out about workplace abuses or unpaid wages.

Simple reforms that could fix the H-1B program include:

  • Requiring employers to recruit U.S. workers and offer jobs to any equally or better qualified U.S. workers before hiring H-1B workers.
  • Requiring employers who cannot find qualified U.S. workers to pay the H-1B workers they hire no less than the local average wage for the job.
  • Providing the Labor Department with additional legal authority to crack down on abuses and exploitation of U.S. and H-1B workers, and to conduct random audits of H-1B employers.
  • Increasing funding to the Labor Department to hire additional agents in the Wage and Hour Division and better scrutinize H-1B applications.
  • Providing H-1B workers with additional protections against employer retaliation and workplace abuse.
  • Ban employers from hiring additional H-1B workers if they have violated any wage and hour, labor, or immigration laws.
  • Reforming the H-1B lottery to prioritize higher-paying employers and non-H-1B-dependent employers.

See related work on Immigration

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Jobs at $20 Per Hour

by Denis Drew

Neither rust-belt Americans nor Chicago gang-bangers are interested in up-to-date kitchens or two vans in the driveway.  Both are most especially not interested in $10 an hour jobs.

Both would be very, very especially interested in $20 an hour jobs.

80 years ago Congress forgot to put criminal enforcement in the NLRA(a).  Had union busting been a felony all along we would be like Germany today.  Maybe at some point our progressives might note that collective bargaining is the T-Rex in the room — or the missing T-Rex.

The money is there for $20 jobs.  49 years — and half the per capita income ago — the fed min wage was $11.  Since then the bottom 45% went from 20% overall income share to 10% — while the top 1% went from 10% to 20%.

How to get it — how to get collective bargaining set up? States can make union busting a felony without worrying about so-called federal preemption:
+ a state law sanctioning wholesalers, for instance, using market power to block small retail establishments from combining their bargaining power could be the same one that makes union busting a felony — overlap like min wage laws — especially since on crim penalties the fed has left nothing to overlap since 1935
+ First Amendment right to collectively bargain cannot be forced by the fed down (the current) impassable road.  Double ditto for FedEx employees who have to hurdle the whole-nation-at-once certification election barrier
+ for contrast, examples of state infringement on federal preemption might be a state finding of union busting leading to a mandate for an election under the fed setup — or any state certification setup for labor already covered by NLRA(a) or RLA(a).  (Okay for excluded farm workers.) Continue reading

Labor Day Weekend Reading

by Paul Garver

Getman cover

If you are as tired as I am of inane electoral political commentary in the media, why not take some time over the Labor Day weekend to consider the deep roots of the growing economic and political inequality that underlies the superficial campaign rhetoric?
I would not normally recommend sources on labor law and labor economics for your holiday reading. But here goes.

The Economic Policy Institute [EPI] just released a new research report, “Union decline lowers wages of nonunion workers: The overlooked reason why wages are stuck and inequality is growing,” Access at http://www.epi.org/files/pdf/112811.pdf

The EPI Report analyzes how the decline of organized labor in the USA has contributed to wage stagnation and economic inequality. If good jobs in industry are increasingly scarce and pay for private sector workers has barely budged in the last four decades, a major cause is the catastrophic decline in private sector unionism from 35% to 5%. Building walls along the borders and expelling undocumented immigrants will not help alienated working-class voters. As Hamilton Nolan advises them in his analysis of the EPI Report: “Don’t get mad at foreigners. Unionize. It’s the only battle in the class war that lies entirely within your power to win.”

However a major contributing factor to the decline of union organization is the way the U.S. Supreme Court has interpreted labor law over the same decades. Labor law professor and practitioner Julius Getman has written a concise and spritely study called The Supreme Court on Unions: Why Labor Law Is Failing American Workers (Cornell Univ. Press, 2016). In fewer than 200 pages, Getman demonstrates how a series of Supreme Court decisions on union organizing, collective bargaining, the right to strike, picketing, boycotts, the duty of fair representation, and the definition of “employee” have effectively gutted the ability of labor unions to organize new members and to bargain good contracts.

When over forty years ago I was hired by a local SEIU union to organize hospital workers (NLRB jurisdiction had recently been extended to the hospital sector), I was not prepared to confront the incredible number of tools the employer already could wield to frustrate the right of hospital workers to organize into a union. Despite several badly coordinated legislative efforts to improve union rights during the Carter and Clinton administrations, the legal framework for union organizing and bargaining has continued to deteriorate over the last half century. Getman shows how even many of the more liberal Supreme Court appointees do not comprehend or support interpretations of labor law that would reverse this trend.

Getman analyzes that it is unlikely that even better Court appointments and incremental legislative reform could overturn entrenched basic antiunion precedents After more than half a century of practicing and teaching labor law, Getman realizes that significant change will require a long hard struggle, would be bitterly opposed by wealthy political patrons of both Republican and Democratic parties, and would demand the election of a president willing to make strengthening union organization and collective bargaining as the highest political priority. “Significant labor law reform,” he reluctantly concludes’ “is more likely to follow from than to cause a resurgence of the labor movement.” That can only occur if the workers’ movement becomes part of a wider popular insurgency.

I recommend The Supreme Court on Unions: Why Labor Law is Failing American Workers as an indispensable resource not only for those active in the labor movement, but for all who are committed to building a wider movement for political revolution in the USA.

Temporary Workers Not Allowed to Form Unions

Seth Sandronsky
Self-employed independent contractors in California can neither form unions nor negotiate collective bargaining pacts, but part of those conditions could soon change, according to Assemblywoman Lorena Gonzalez (D-San Diego). Gonzalez, Chair of the Assembly Select Committee on Women in the Workplace, introduced Assembly Bill 1727 on January 28 as an amendment to the state’s Labor Code. Gonzalez’s bill, which will be updated today, is called the California 1099 Self-Organizing Act. It would allow independent contractors to form employee associations that could negotiate working conditions and pay, though not to form labor unions.
“All workers should have the right to organize and collectively bargain,” Gonzalez said in an email to Capital & Main. “Our laws need to catch up to the innovation happening in our economy to ensure independent contractors have a pathway to these workplace rights as well.”

Assembly Bill 1727 would not compel employers to classify independent contractors as employees.

AB 1727 would not, however, compel employers to classify independent contractors as employees — nor would it allow these workers to form a traditional labor union or to join an existing union. That rubs Steve Smith, director of communications for the California Labor Federation, the wrong way.
“We agree with Assemblywoman Gonzalez that self-employed workers should have every right to bargain collectively, but have concerns about the approach,” Smith told Capital & Main by phone, “The problem with AB 1727 is that it basically enshrines an unfair business model that companies like Uber use to misclassify their workforce as independent contractors instead of employees.”

Nonunion workers without the right to bargain collectively get the short end of the stick, say critics of the gig economy. “Unionized workers have on average 20 percent higher wages than their nonunion peers,” wrote Evan Butcher for the Washington, D.C.-based Center for Economic and Policy Research, last September.
Uber, the app-based, ride-hailing firm, is one of the best-known businesses that rely on independent contractors. The company sells labor services by arranging for individuals to drive their own cars as personal taxis to earn income. And in early 2016, Amazon.com, the popular online retail giant, began to expand its delivery of goods with independent contractor drivers through Amazon Flex. Continue reading

Facts on Friedrichs V CTA

The Supreme Court could deal a blow to working people

On Monday the Supreme Court heard arguments in Friedrichs v. California Teachers Association, which concerns whether public-sector employees who receive the benefits of a collective bargaining agreement should be required to pay their fair share of the cost of negotiating and protecting those benefits, regardless of whether they belong to a union. The case has potentially far-reaching consequences for workers. EPI research has illustrated how the case threatens the rights of working people to collectively negotiate with their employers, and this week EPI released a fact sheet explaining how collective bargaining raises wages and improves the standard of living for all workers. below.

Also: There are important tributes to the contributions of Martin Luther King jr. on our Democratic Left blog, http://www.dsausa.org

Using the Court to Oppose Unions

by Rick Patelunas

supreme-court-546279_640

Elections, right-to-work laws and battles in states like Wisconsin often grab the headlines, but the courts can be just as an effective tool of the Right to oppose workers’ rights.  The basic right to bargain collectively with any effectiveness requires resources and funding those resources should be shared by those who realize the benefits.  In an effort to cut off or stifle funding, right-to-work advocates argue that requiring union contributions by workers is coercion that violates the workers’ First Amendment right to free speech.  The reasoning is that individual workers may not agree with all of the union positions and by contributing, they are forced to aid policies they didn’t support.
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