Each year, tens of thousands of workers, mostly from Mexico and mostly men, enter the United States on temporary visas to labor in its agricultural fields. H-2A workers, as they are known, are the ultimate outsiders: contracted by a single employer for a specified period, they face dangerous labor and housing conditions, without the option of seeking other employment and with no other ties to or rights in the United States. Despite a robust regulatory scheme that mandates terms—including their hourly wage and expenses their employer is required to cover—H-2A workers are frequently exploited; experiencing everything from wage theft to the extraction of unlawful recruitment fees, they risk retaliation by employers and recruiters if they dare to complain about the mistreatment. To compound the problem, the systems in place to redress these wrongs are woefully insufficient: government enforcement is weak, and H-2A workers’ ability to take direct action is undercut by factors such as their temporary and isolated presence in the United States and the limitations on their access to legal representation. Despite these constraints, there are examples of H-2A workers who have filed civil lawsuits against their employers. Having done so, they still encounter obstacles to their full participation in the process, due to the lack of familiarity with the U.S. legal system and the likelihood that the litigation will continue past the time they leave the United States.
In this article, I explore strategies for minimizing the disconnect between H-2A workers and the process of civil litigation and consider the ways in which litigation itself can be an empowering process and vehicle for amplifying worker voice. Using the frame of client-centered lawyering and drawing on two recent case studies of community lawyering among low-wage immigrant workers, I discuss the methods that lawyers representing H-2A workers can employ during the various stages of a civil lawsuit to ensure that their clients are not again relegated to an outsider status. In particular, I focus on four “moments” in the life of a case: the decision to file a lawsuit, the drafting of the complaint, discovery, and trial. Moreover, I consider how client voice can be amplified outside of the four corners of a lawsuit by providing strategies for how to do so while settling cases and discussing the downstream, indirect effects of litigation on H-2A worker empowerment. By putting these considerations into practice, I argue that litigation itself can both serve as an empowering experience for H-2A workers and shed light on the abuses within the H-2A program more generally.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.