FEATURE: Labor Pains

By on January 26, 2016

When the valley’s promised land of milk and money turns sour for foreign workers.

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Illustration by Cal Brackin

Jackson, WY – When Oksana* arrived in America last year the very first thing she remembers was the mountains. She was awestruck by their rugged beauty. Awe turned to shock when she was shown her home for the next four months. It was a dump, she said.

“I am from Serbia. I am not afraid of nasty places. I have lived in places not really well,” Oksana said.

She shared a bed–not a bedroom, a bed–with three other girls. Once a day they were all trucked from the rented house in Alpine to their job at a local hotel. The van driver was “many times drunk,” Oksana said.

She was promised a comfortable room with Wi-Fi. She got a trailer with no running water.

Oksana’s story is not uncommon in Jackson Hole, where temporary foreign workers are the labor lifeblood of the service industry. They are here from all around the world–cooking and cleaning for the valley’s other chief import: tourists. Thousands are here in the area on temporary work visas like the J-1 and H-2B to perform seasonal work local employers say no one else will touch.

Theyre coming to America

When it works, the guest worker program profits all. Employers get a temp who doesn’t need benefits. Foreign nationals bank U.S. dollars and party like rock stars. Still, the system, at its best raises questions of whether it drives down wages, contributes to unemployment, and fosters an overarching socioeconomic imbalance. At its worst, people like Oksana get steamrolled.

“The guest worker program is great in principle. It’s wonderful for everyone,” said Rosie Read. The attorney has focused heavily on immigration law in Jackson for the past seven years at Trefonas Law. “We have a shortage of people who are willing to perform harder work, more uncomfortable manual labor in the U.S., and that gap is often filled by immigrant labor. There is clearly a need as well as a will on the other side from the employees to come take those jobs.”

Problems arise for a variety of reasons, including less than scrupulous middle agents – government sanctioned companies acting as recruiters – that sometimes misrepresent or mistreat foreigners. Federal bureaucracy, red tape and political tug-of-wars have also created a system rife with abuse and exploitation.

When workers dare complain, they are threatened with deportation. They are often too scared to seek help. They don’t know their rights. Neither, it seems, does anyone else.

Since 2009, lawsuits involving H-2B visa regulations have turned the program into a political football. Crafted for employers by big money DC lobbyists including the U.S. Chamber of Commerce, ImmigrationWorks USA, and the National Restaurant Association, H-2Bs were once a cheap and easy way for hoteliers to hire summer housekeepers. Then a lawsuit. Then an injunction. Another lawsuit. And a resulting enjoining.

Immigration policy becomes campaign fodder, while the feds have trouble getting out of their own way. The result of constant litigation and congressional appropriation riders has left agencies like the Department of Labor and Homeland Security wondering who has the authority to do what…and with what money?

“You are up against a big messy bureaucracy. The H-2B regulations in particular are a mess,” Read said. “Employers aren’t happy overall with how the program is run, and from the employees’ perspective I think some protections need to be implemented. Because when things don’t go well for them here they are trapped. It needs reform from both ends.”

Reform is reportedly on the way but word is always slow to reach Wyoming. When Read took a case pro bono last summer to represent six workers from Jamaica who were unhappy with their gig at Snake River Lodge, she ran headfirst into the machine. It took days to find the right phone number. After runaround in an automated phone system at the state capitol, Read finally found the right person only to be told there was nothing he could do.

“We were trying to find this one guy. There is one guy in the state of Wyoming who is responsible for taking these complaints, and when we finally found him he told me he didn’t think he had the authority to investigate visa cases because ‘the program was on hold,’” Read said. “I felt quite helpless. It’s sort of a grim picture as far as what recourse an unhappy temporary worker has in the U.S. during the time they are here. I told the Jamaicans they should just go home and start over with a new employer.”

Read eventually convinced someone in Cheyenne to take her complaint. It was filed. She hasn’t heard a thing since. The Jamaicans are long gone.

As Read found, protections for foreign workers are few, while finding justice for them seemingly impossible.

According to nationally recognized journalist-turned-researcher Jerry Kammer, “The State Department has done a horrible job of protecting these people. They are supposed to look after the interests of these people but they are often ripped off and abused.”

Daniel Costa is director of Immigration Law and Policy Research at the Economic Policy Institute (EPI). He said loopholes in immigration law continue to allow employers to exploit migrant workers. It’s an indentured servant program bordering on serfdom.

“Employers don’t need guest workers to fill labor shortages, but they hire them because guest workers become instantly deportable when fired and aren’t protected from retaliation or allowed to switch jobs if they have an abusive employer,” Costa said.

Time is not on the side of foreign workers, either. Most are in the states for less than six months. Even if a case were looked into, the investigation would take longer than the visa term. Monetary judgment, if any, would include back pay that probably wouldn’t cover airfare back home, Read guessed.

“Sometimes the only recourse these people have, the only justice they are going to receive, is when newspapers like yours make it a story,” said Mike Krikorian, executive director of the Center for Immigration Studies (CIS) based in Washington, DC. Employers can do pretty much anything they want to [foreign workers] because there are no parents here to complain. Whereas, if they are stacking American kids 14 to a room they wouldn’t be able to get away with it. It all comes down to the same thing: employers import people they can control and pay less.”

Photo: Jake Nichols

Snow job

Back to Oksana. She and her fellow countrymen were brought to the U.S. by a recruiting agency called American Connection, run by Linda Vaz-Smith.

When problems arose concerning the amount of hours workers were assigned, subpar housing situations, unreliable transportation, and a workplace environment filled with systematic abuse, the employer blamed Vaz-Smith. She, in turn, claimed the hotel was at fault.

Recruiting agencies like the one Vaz-Smith owns are authorized by the federal government to match employers with employees. There is an estimated 18 licensed in the U.S. They receive fees from the employee, often in addition to recouping airfare and other expenditure layouts they make on behalf of visa seekers. Their role is as a sponsor but it comes dangerously close to worker exploitation.

“The government is not really all that strict in who they allow to do this kind of work. The standards are pretty low in the approval process required to be a recruiter or middleman, and there is almost no follow up unless you really screw up and the story gets in the news,” Krikorian said. “Congress has allowed these programs to mushroom to such a degree there is no bureaucratic structure to keep track of them. It’s basically on the honor system.”

Read said she’s familiar with numerous problems with recruiting agencies. “[For instance], the employee is not supposed to have to pay basically anything in order to come here with an H-2B visa. But you’ll see the recruitment agencies charging them some prohibitive fees,” she said. “I’ve certainly heard of recruitment agencies doing this.”

Kenneth Goehring worked as a subcontractor for Vaz-Smith the season Oksana and others had their trouble. He remembers that summer as a “nightmare.”

Goehring says she was unethical and unreliable and still owes him money.

County attorney Keith Gingery said he’s been looking for Vaz-Smith since last October. When Department of Workforce Services found Goehring was owed $1,122 in unpaid wages, Gingery called American Connection in Chicago.

“At first she tried to claim Ken didn’t technically work for her,” Gingery recalled. “Then she said she was putting a check in the mail. You know how that goes. I haven’t heard anything since.”

By August 2014, the hotel allegedly had had it with Vaz-Smith. Its HR director severed ties with the agency after 11 of their workers retained a lawyer, according to local attorney Traci Mears.

Mears took the case on behalf of the foreign contingent. “They were not being paid what they were promised. The hours far exceeded what is allowed under U.S. law and Wyoming state law,” Mears said. “When I did the calculations, they were making less than $4 an hour. Plus they were being charged $150 a week for housing and $80 a month for transportation. They had no money and no time off.”

“These kids were treated like crap,” Goehring said.

Middle agencies effectively create a layer of protection for employers. When jobs or hours or housing isn’t what was promised, both parties blame the other.

Mears said her issue was with the hotels. “I am really frustrated with the powers that be there. They signed the employment contract along with the agency. But all I got was finger pointing.”

Oksana ended up quitting and going to work somewhere else. She said she liked Jackson Hole and met some really good friends. “It was bad situation. But I know that is not what America is like,” she said. “I still remember beautiful mountains.”

Vaz-Smith keeps residences in Wisconsin, Maryland, Maine, and Connecticut. Attempts to reach her were unsuccessful.

Voodoo economics

The guest worker program is tailor-made for places like Jackson Hole. The richest county in America has become a place of the “haves” and the “will nots.” Those with the means to have their every whim catered to share space with a middle class feeling too entitled to take unskilled work. That leaves bottom-feeder peons to hang sheetrock, fold sheets, and mow lawns. That pool is stretched thin with 70-hour workweeks pieced together between three jobs by hustling laborers from bedroom communities in Teton and Star valleys.

Enter Mexico, Venezuela, Argentina, and Russia to the rescue.

But are foreign workers taking jobs from locals? And do they keep wages artificially low?

Sara Saulcy, a staff economist with the Wyoming Department of Employment said, “The argument that foreign workers are employed in jobs domestic workers do not want may have credence, given that most foreign workers are employed in low-paying jobs.”

But Krikorian counters. “If the supply of foreign workers were to dry up, employers would respond to this new, tighter labor market in two ways. One, they would offer higher wages, increased benefits, and improved working conditions. At the same time, employers would look for ways to eliminate some of the jobs they are now having trouble filling. The result would be a new equilibrium, with blue-collar workers making somewhat better money, but each one of those workers being more productive,” he said.

It’s a valid argument in the real world. But this is Teton County.

“I’ve got ads in the paper right now. I don’t care what you pay. No one is walking through the door,” said Stephen Price, general manager of Spring Creek Ranch. “We are not taking any jobs from people, and these are good paying jobs.”

Every employer contacted by The Planet said they paid their guest workers the same rate they do locals. Albertsons, Four Seasons, JHMR, and others all claimed pay rate was not a determining factor in choosing to go out-of-country for employees. They simply couldn’t fill the jobs from the classifieds. All denied, as well, that temporary visas were taking jobs away from Americans.

“The effects on American younger workers are significant. It allows employers to pay less but that’s not the only advantage,” Krikorian insisted. “Employers lock in the workers early in the season. They’ve filled their staffing needs so early that when American kids look for these summer jobs on college break, the jobs are gone.”

Costa said data supports the notion that foreign workers drive down wages. From 2007 to 2014, statistics from the American Community Survey show little to no wage increase in several select entry-level occupations.

“Low and stagnant wages are not the result of benign, abstract economic forces,” Costa said. “They reflect conscious policy choices by lawmakers influenced by powerful corporate lobby groups like the Chamber of Commerce and the National Restaurant Association.”

The system has inherent fraud built in. Jackson’s seasonal ebb and flow necessitating resort hotels, for instance, to justify use of temporary work visas is questionable. CIS has found an example of a local hotel that successfully petitioned the DOL for 118 H-2B workers from December 2007 to April 2008. That spring, the same hotel asked for another 118 workers from May to the end of October, effectively providing the resort with year-round “seasonal” coverage.

Boarding worker bees

Newport Hotel Group owns some of the most exclusive lodging facilities in the country including the Snake River Lodge and Spa. But one holding you’ll never see them advertise is the Cache Creek Lodge in north Jackson. The motel was ranked dead last in TripAdvisor’s 41 lodging listings in Jackson before it was sold to Newport last year. It’s now used solely to house Snake River Lodge’s immigrant workers.

Attorney Read defended the group of Jamaican workers at the Snake River Lodge. She says rent was deducted directly from their paychecks. When the Jamaicans wanted out, resort managers allegedly told them if they left company accommodations, they would be fired.

Read ran down a list of alleged human rights violations in that case. “They were supposed to provide a certain number of hours and these employees weren’t getting enough hours. They are not supposed to be retaliated against if they complain about unsatisfactory working conditions. When one went in to complain she was sent home for the day. That’s docking wages. The rent was more expensive than they were originally told it was going to be,” she said. “They were also told they were going to be taken to Idaho Falls to get their social security cards. They kept being put off.”

Calls for Scott Alemany, Newport’s director of operations, were never returned.

Housing has always been a bitch for bosses. Spring Creek caught some flak last summer for boarding a few eastern Europeans in a rundown trailer. GM Price said the tight housing market caught him by surprise. “[During the recession], we cut back on the number of apartments we had. Then all of the sudden everything hit,” he said.

The resort is currently building dormitory-style housing onsite. The project should be ready by May and will house 30 employees.

In years past, Four Seasons has bought out the Teton Gables Motel to house their temporary visa workers. Resort spokesperson Nina Braga said housing continues to be a difficult aspect of the program but added, “We work with them. We have some local opportunities offsite and limited housing on property.”

Bracero de nuevo

Price said Spring Creek has migrated toward J-1 visas rather than H-2Bs. The latter has become unpopular with most local employers for a number of reasons. They are harder to get. The total number issued in the country is capped at 66,000 a year. They are also becoming increasingly more expensive, putting employers on the hook for the cost of getting employees to the US. And they require proof that an employer could not fill their needs locally.

Attorney Rosie Read (Photo: Courtesy photo)

Brian Clark, state monitor advocate for the Wyoming DOE, said H-2B use has tapered off in recent years due to “the need for new regulations from the Department of Homeland Security and the Department of Labor.” He added that the slack appears to have been taken up with increased use of J-1s.

J-1 visas are similar to H-2Bs with two major distinctions. They are designed for college students from other countries to expand their education with training in the field while in America. But these summer break ”internships” usually amount to little more than learning how to operate a conveyor dishwasher. There is also a cultural exchange component, which is largely ignored by both superior and subordinate.

“The idea that this is a cultural exchange program is completely bogus. It merely justifies a way to avoid hiring Americans,” Kammer said. “Our government has set up a system where employers don’t even need to try to find domestic help. It provides the recruitment process for the employer so they don’t even have to get into that, and to sweeten the deal there are incentives to hire foreign workers because they don’t have to pay the taxes that they would on fulltime workers. It’s a $150 million industry American employers have become addicted to.”

Mary Erickson, who heads the Community Resource Center where foreigners regularly show up for assistance, said the system creates a burden on social services.

“The J-1 is supposed to be an educational exchange but I don’t see that happening. It’s really just labor,” Erickson said. “I believe in the goodness of people but some of these employers and middlemen have been continuously stretching the rules as much as they can. And what ends up happening is these workers come to us and it’s a strain on our services. We are really not set up to take care of transients. We are intended to take care of long-term members of the community.”

The Good Samaritan Mission has been inundated lately with bewildered Puerto Ricans who say they were promised jobs at the Four Seasons. When they arrived in Jackson, the jobs mysteriously vanished.

“We have five or six staying with us,” said the Mission’s Brad Christensen. “They said they were recruited by a company called MMI and promised jobs at the Four Seasons, then abandoned when they got here. They weren’t happy.”

Christensen said he’s contacted Access for Justice who said they are interested in taking up a case for the misplaced migrants.

Four Seasons spokesperson Braga says the hotel has not hired anyone directly from Puerto Rico but acknowledged they do sometimes work with a third party contractor called The Service Companies, an outsourcing company The Planet learned acquired MMI in 2014.

The Service Companies’ corporate director of human resources, Nikki Bernal explained how her firm works and said she wanted a chance to set the record straight.

“MMI is not a temporary staffing agency, we are an outsourcing company working directly with the Puerto Rican government,” Bernal said.

She added that MMI hires their own employees after a background check and drug testing. They are then assigned to property locations throughout the United States.

“We only recruit in areas where it is difficult to find employees. The labor pool in Jackson Hole, as you know, is very limited,” Bernal said. “There is nobody who comes to Jackson through us without a job, and our intention is certainly not to burden the city of Jackson or the state of Wyoming with our workers.”

Bernal added that MMI pays airfare for each employee to Jackson. They are housed each with their own room. They are paid $10 an hour to start. They are prepared for conditions in Wyoming and winter clothing is purchased for them by MMI.

“We had a property in Jackson that closed for a month. We were able to keep eight of our employees there deep cleaning. I moved 12 others to another hotel we service in Jackson Hole. Seven others were moved to Colorado to work a hotel there and some went back home for a while,” she said.

Bernal admitted some employees choose to leave her employment after they arrive. They sometimes find better paying jobs. Once their employment with MMI is terminated, they must surrender housing within 48 hours but Bernal said she understands the hardship of finding housing and has often let employees stay as long as two weeks until they can find something.

Attorney Traci Mears (Photo: Courtesy Photo)

Erickson said hiring Puerto Ricans is a new trend she is seeing at the Four Seasons and Hotel Terra. These laborers are technically US citizens who do not need a visa to enter the country.

“Their economy is in the toilet. They are coming to the states in droves,” Erickson said. “They don’t have to go through the whole visa process, all they have to do is just get here. The problem is some are promised jobs and housing and some aren’t. They are completely unprepared. They show up here without winter coats or boots.”

The North American Congress on Latin America (NACLA) reports Puerto Rico is second only to Mexico as a source of cheap imported labor in the US. Pew Research Center analysis of Census Bureau data found 84,000 people left Puerto Rico for the US mainland in 2011. NACLA estimates the number could be closer to 200,000, annually.

“Puerto Rico’s nearly decade-long economic recession has led to people leaving the island for the mainland in numbers not seen in more than 50 years,” the Pew report stated. There were 1,026 Puerto Ricans documented living in Wyoming according to the 2010 Census.

Synthetically Western

The effect of guest worker programs in Jackson Hole is a handiworked “Devil’s Bargain,” Hal Rothman describes in his book of the same title. In it, Rothman portrays luxury resort towns like Jackson as modified tourist communities. A place where “neo-natives, attracted to the original traits of a transformed place, have moved in and created a community very different from the one established by locals who came before them.”

A few years ago, the News&Guide ran a poll asking citizens what the new slogan for Jackson Hole should be since the sign at the top of the pass – “Yonder lies the Last of the Old West” – was beginning to show its teeth. The paper jokingly suggested a replacement: “Jackson Hole, where California plays and Mexico works.”

Jackson Hole Mountain Resort is employing about 52 foreign workers this winter on J-1 visas. They hire about the same amount for summer. In past years, JHMR has employed more than 250 international workers at any given time. Human Resource director Nicola James said they gave up on H-2Bs back in 2007. JHMR has an in-house recruiter who regularly visits countries like Argentina. She works with a middle agency called Universal Student Exchange.

Albertsons typically hires around 80 foreign temps a year. Xanterra, concessionaire for Yellowstone and Grand Teton parks, typically hire 1,000 or more guest workers. Other valley businesses using international laborers include numerous restaurants, smaller hotels, construction firms, lawn care companies, and dude ranches.

The result? Many employers and employees alike are happy with visa programs. They suit Jackson Hole’s crunch seasons with little overhead. They have, however, arguably created a fabricated faux Jackson Hole. An ersatz community of waiters and the waited upon.

And Oksana, for one, is never coming back. PJH

*Not her real name.

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