The Hippo


May 30, 2020








Fiesta Shows

Alleged abuses of seasonal foreign workers plague the program across the country, and New Hampshire is no exception.
As of March 26, a New Hampshire company became officially embroiled in a class action lawsuit for what the plaintiffs say is a continuing pattern of exploitation, after a Boston court certified the nearly two-year-old case as a class action.
E.J. Amusements of Seabrook, owned by Eugene “E.J.” Dean III, hired 50 migrant workers with seasonal H-2B visas in fiscal year 2014, the largest number for any New Hampshire company. E.J. Amusements is one of a handful of companies associated with Fiesta Shows, a traveling amusement park that operates throughout New England. The suit covers a period going back to 2010 to include about 160 workers, and while some of its employees are American citizens, the company relies heavily on guest workers who come from Mexico and South Africa. The suit claims that workers have been required to work up to 95 hours each week for only a flat rate of about $400.
Shannon Liss-Riordan is a Boston lawyer representing the employees. Her firm specializes in wage and hour suits. She said these migrant workers are especially vulnerable to being overworked and underpaid.
“We see this all the time, but it’s particularly acute when you have particularly low-wage workers who are highly dependent on this company for their livelihood,” Liss-Riordan said. 
Workers like Jorge Pillar Garcia, the main plaintiff in the class action suit, has said that the New Hampshire company not only has left its workers chronically underpaid, but also charges the foreign workers illegal up-front fees for their visas.
The day before the court’s ruling to certify the suit as a class action, the National Labor Relations Board filed a complaint against Fiesta Shows for having its current and some past employees sign release and settlement forms as part of its employment contracts since March 2014. In return for their signing, the company paid the workers $100 each. This places about 60 of the roughly 160 employees potentially owed damages in a state of limbo while Liss-Riordan tries to get the court to nullify those documents.
Liss-Riordan said many of these workers don’t speak English, and about half of those she spoke with refused to go on the record.
“People are very, very scared to go up against this company,” Liss-Riordan said.
Calls to Fiesta Shows and its lawyers have not been returned. The trial is scheduled to begin in August.

Seasonal worker struggles
Migrant labor pay is driving a legal rollercoaster

By Ryan Lessard

 The seasonal foreign worker program has come under scrutiny in recent years by those who argue workers are being treated unfairly and by employers who say regulations are too burdensome. New Hampshire has not been immune to the conflict, with companies like Hart’s Turkey Farm in Meredith and Faulkner’s Landscaping and Nursery in Hooksett worried that the federal government’s recent freeze on seasonal visas will significantly hurt business this year.

H-2B visas in New Hampshire
The H-2B visa program brings in non-farming, migrant workers to do seasonal jobs that employers can’t fill from the domestic workforce. Employers need to demonstrate that they’ve advertised their positions locally before getting approval to mine labor from abroad. Workers come from other countries to do these mostly summer jobs, which include landscapers, maids, carnival workers and restaurant workers, because there are no other jobs at home, or the jobs that exist pay far less than what they can make in the United States.
Still, employers who use the program say it becomes less economically viable each year.
Mark Somers, president and CEO of the New Hampshire Lodging and Restaurant Association, said businesses in the hospitality industry are utilizing the program a lot less than they did five or 10 years ago.
“They’re not cheap workers anymore. They’re actually quite expensive,” Somers said.
Indeed, numbers from the Department of Labor reflect this decline. In fiscal year 2010, there were 464 H-2B visas certified to work in New Hampshire. In fiscal year 2014, there were 289. During that same period, average wage offerings for guestworkers in the state increased from $8.73 per hour to $10.81.
The companies that use guestworkers the most, Somers said, are typically located in summer tourist locations like the seacoast or the lakes region.
“The challenge is, there literally [are] not people in those areas that will take those jobs or the unemployment rate is so low there’s not enough folks to go around the various businesses to try to hire them for the busy season,” Somers said.
He estimates hospitality businesses rely on H-2B visa workers for 10 to 15 percent of their workforce and that, without access to that program, many will have to scale back their operations.
Visa laws in limbo
The Department of Homeland Security and the Labor Department stopped issuing H-2B visas on March 4 when a Florida court ruled that the Department of Labor doesn’t have the authority to regulate the program under the Immigration and Nationality Act. 
But on March 18, processing the seasonal visas resumed when a second order from the court permitted visas to be processed until April 16 to avoid harming businesses that rely on the program.
The federal agencies issued a memo stating they would work out new rules by April 30, but it’s unclear whether the court will even accept the new rules. 
At issue is whether the Department of Labor can enforce prevailing wages for migrant workers, with annual increases, through a rule it codified in 2008. In other words, it’s requiring employers to pay the foreign workers about the same rate they would pay local employees.
The waiting game
Some businesses, like Hart’s Turkey Farm in Meredith, want to use guest workers this year, but Hart’s application for H-2B visas is in a holding pattern while the federal government tries to resolve its processing logjam.
“The people in Washington, I don’t think they understand how important it is,” Hart said.
In 2014 Hart’s had four certified workers from Jamaica to cook for the restaurant and catering business, and it is applying for six this year. 
Russell Hart, the restaurant’s owner, said companies like his used to be able to get the people they need from the area about 40 years ago, but that’s “ancient history” now.
“In this area, we are seasonal,” Hart said. “We need experienced people.”
He said it’s a win-win for employers and workers. One Jamaican worker told him that he’d earn 50 cents an hour doing the same work he does in New Hampshire. 
“What they earn [in one season in New Hampshire] is what they’d earn in 10 years down there,” Hart said.
In 2014, Hart was required to pay his Jamaican cooks at least $11.60 per hour. Hart said while that’s not too high for him to pay, he estimates at least another $2 is added to every hour of foreign labor he gets when you factor what it costs to bring them over, though he makes some of it back by renting out a domicile behind the restaurant to the foreign workers. 
Relying on guest workers
Faulkner’s Landscaping and Nursery in Hooksett is heavily reliant on its Mexican migrant workers. But owner Steve Faulkner said he fears they won’t be able to come this year. Faulkner said he started the business 24 years ago, but over the past decade he’s cultivated a highly skilled team of about a half dozen guys that returns every year.
“We basically built this business around these men,” Faulkner said. “...I would have been out of business if I didn’t have this team during the recession.”
He said his income doubled using this team compared to the labor that was available from the area. And it’s not because he doesn’t pay them as much.
“If I could hire local guys, I would. It costs me about $9,000 a year to bring these guys over,” Faulkner said. 
And that’s not counting the $1,500 mortgage payments he makes for the house the guys live in while they’re here.
According to the Labor Department, Faulkner was required to pay his men at least $9.70 per hour in fiscal year 2014.
Now, Faulkner said a confluence of the earlier two-week freeze and the loss of a returning worker exemption to the annual H2-B cap means his team couldn’t come to New Hampshire this year. And his business is going to suffer.
“We’re estimating a 60- to 70-percent reduction in landscape income this year,” Faulkner said. “I’ve got a bunch of green guys out here who don’t know how to operate a shovel, let alone lay down a patio.”
He said he’s got more than $500,000 worth of equipment sitting idle because he doesn’t have anyone on his payroll who knows how to use it.
On top of that, Faulkner said he’s likely going to need to lay off his commercial estimator since he can’t bid on the bigger, commercial projects without his trained team.
He’s currently working with Sen. Jeanne Shaheen’s office and Congressman Frank Guinta’s office to apply for an emergency release exemption. If he’s successful, he estimates, the best-case scenario means the loss of tens of thousands of dollars each month he waits for his team to arrive. In the meantime, Faulkner, who’s in his 70s, will have to pitch in with some of the manual labor. 
As seen in the April 16, 2015 issue of the Hippo.

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