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Wednesday, 07/05/06

Guest workers underpaid, suit says
Few rights make him, others vulnerable, says Mexican forestry hand

By TRAVIS LOLLER
Staff Writer


Jose Rosiles-Perez, as have many men from his small village in Veracruz, Mexico, has spent the better part of several years away from his family, working on pine plantations in Middle Tennessee and across the Southern United States.

He often worked from sunup to sundown, six or seven days a week, sometimes without seeing anyone except the other members of his crew.

"The work is very hard," Rosiles-Perez said in Spanish. "Extremely hard."

Not only were living and working conditions difficult, but Rosiles-Perez believes he was constantly underpaid because he had few rights as a foreign worker. Rosiles-Perez is among about 40 Mexican workers being represented by the Southern Poverty Law Center in a lawsuit against their former employer, Arkansas-based Superior Forestry Service Inc.

Because some of the forestry work took place around Columbia, Tenn., the suit was filed in U.S. District Court in Nashville earlier this year.

J. Larry Stine, an attorney for Superior Forestry Service Inc. who specializes in wage-and-hour law, said the company he represents pays its employees for all the hours they work, including overtime.

"I think Southern Poverty is trying to paint each company in this industry with the same paintbrush."

Rosiles-Perez said he sometimes had to sleep on the dirty carpet of a motel room crowded with other workers. When the hotels did not have refrigerators, they had to keep all of their food for the week on ice in a cooler. At other times, the hotels would not allow the workers to cook in their rooms.

"Then we just had to eat bread," he said.

One year, he said the insults and mistreatment from a supervisor became too much, and he and several others returned to Mexico after complaining to the company that hired him. That was the only time in seven years that he did not work the full nine-month forestry season, he said.

Because he could make more money planting and fumigating pine trees here than working in agriculture at home, Rosiles-Perez said he kept coming back. He decided to call it quits and return to Mexico last year.

Never complained on job

Rosiles-Perez was recruited by Superior Forestry Service Inc., which secured an H-2B guest worker visa for him. These visas are reserved for temporary and seasonal jobs that there are not enough American workers to fill.

He never complained about his pay while working, Rosiles-Perez said, but the hours on his pay stubs always seemed to be fewer than the hours he worked.

"The problem we all have with the company is that they didn't pay correctly for the trees planted," he said.

The lawsuit comes as Congress debates increasing the number of foreign guest workers allowed to enter the country each year.

"What this suit demonstrates is this (guest worker visa) isn't an advantageous path at all," said attorney Andrew Turner, who represents the workers through the Southern Poverty Law Center. "They would have been better off undocumented than captive to employers who don't comply with wage laws."

One problem with the visas, Turner said, is that they allow an employee to work for only one company. That discourages workers from complaining about wages or conditions because they could easily be sent back to their home country and prevented from getting another visa.

In a heartbeat, "they can go from fully employed, with an opportunity to help their families, to undocumented, unemployed and dogged by immigration," he said. "It hearkens back to the days of indentured servitude."

The Tennessee suit is one of four filed by the Southern Poverty Law Center involving forestry workers. All allege underpayment by contractors.

Workers are required to receive the prevailing wage for their industry and geographic area. This ensures that the foreign workers do not undercut the wages of American workers.

Turner, speaking of the industry in general, said forestry workers are paid an hourly wage for some tasks, but for tree planting, they tend to be paid per bag of 1,000 pine trees planted. A usual wage is $25-$28 per bag.

Some forestry companies use the per bag payments to conceal the fact that they are not paying workers prevailing wages, Turner said.

Stine, the lawyer for Superior Forestry Service Inc., said the company does pay workers by the bag for tree planting, but only after they begin planting enough trees to earn at least the prevailing wage. Until then, they are paid by the hour.

"Some of these men can make quite a lot of money, and do make quite a lot of money.".

One of the plaintiffs has been paid for working as many as 62 hours in a week, Stine said, adding "I've got the payroll records to prove it."

The prevailing wage is determined by the U.S. Department of Labor and changes from state to state and year to year, but attorneys for both sides agreed that a prevailing wage for this work during the time period of the lawsuit is in the range of $7-$8 an hour.

Another point of contention is whether workers should have been paid for hours they weren't able to work because of weather conditions. For instance, they could not fumigate when there were strong winds and could not plant trees when the ground was frozen.

Stine maintains that the company rightfully does not pay for hours that are not worked.

Turner, the Southern Poverty Law Center attorney, disagrees.

"The question is, are they being retained for work? If they're in the field, waiting for the wind to die down, they're not on their own time, free to use as they may."

The two sides also disagree whether workers should have been reimbursed for expenses such as transportation and work visas and for supplies such as boots.

Rosiles-Perez said he had to take out a loan at 10 percent interest to be able to make the journey to the United States.

"We'd like the court to decide (these questions)," Turner said.

In recent weeks, the court denied class-action status for the suit, but attorneys for the plaintiffs will have the chance to prove their case for a class action again in a few months.

If they are successful, they estimate the case will affect about 1,500 workers.

Rosiles-Perez said he does not plan to work again in the U.S.

"I'm tired," the 42-year-old said.

Asked if he thinks his 16-year-old son will follow his path, he said, "I wouldn't like him to go plant pine trees. The work is backbreaking." •
Jose Rosiles-Perez