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Exploitation, Intimidation, and Contempt

Tales from the Campaign for Pinero Justice

By Tim Freilich and Erin Trodden

Every year, tens of thousands of guest workers travel to the United States to perform difficult, low-wage jobs. Working legally with H-2A and H-2B visas, they come from all over the world to pick apples, herd sheep, clean hotel rooms, shell crabs, run carnival rides, and plant trees, among other jobs (see 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), (b)). H-2B workers in particular are at risk of exploitation because of systemic flaws within the program itself and limited access to legal services (Jayesh M. Rathod, A Season of Change: Reforming the H-2B Guest Worker Program, 45 Clearinghouse Review 20 (May–June 2011)). Even though the workers are here working legally, until recently federally funded legal aid programs were not permitted to represent H-2B workers—even when the workers were badly mistreated by their employers (see Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, § 540, 121 Stat. 1844, 1934 (2007)).

Here we chronicle our perspective on the legal campaign to improve conditions for one particularly vulnerable subset of H-2B workers: migrant tree planters. The efforts we describe here are only a subset of the great work of numerous talented individuals and organizations nationwide. The campaign lasted more than a decade, involved numerous federal court cases, and ultimately affected thousands of migrant workers from Mexico, Guatemala, and Honduras.

Los Pineros

To feed our nation’s voracious appetite for paper and wood products, migrant workers plant millions of trees each year across the country. This legal campaign began when large multinational paper companies still owned much of the forest land being replanted. They paid labor contractors to arrange the planting, aHector Ortiz-Morand every year, in the late winter and spring, groups of migrant tree planters (pineros) would travel the southeast hand-planting seedlings on a combination of company-owned and private lands. Although much of the paper companies’ land has since been sold off, the tree planting continues. And it continues to be backbreaking work—workers routinely plant thousands of trees per day using only hand tools, often on isolated, roughly cleared patches of forest land. Workers are generally paid by the number of trees planted; workers spend their nights in cheap motels and stay in each place only as long as necessary to get the job done. Their physical isolation and constant relocation hamper them from seeking legal assistance or help of any kind.

Workers who obtained H-2B visas in recent years in the hope of escaping desperate economic conditions in their home countries often found themselves facing desperate economic conditions in the United States. Many of the pineros were from poor regions of Guatemala and Mexico, had little formal education, and spoke Spanish as their second language (see Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States 10–11 (2013)). In their home countries, they had few options for earning a living and very limited incomes if at all. The idea of working in the United States may have seemed attractive, but most labor recruiters in the 1990s and 2000s demanded that workers who wanted a visa pay large amounts of money; the recruiters charged the workers for transportation, other costs, and their own fees. In many cases, the workers borrowed from relatives. Other workers handed over deeds to their homes as collateral. Many of the pineros thus arrived in the United States deeply in debt. Although some courts have ruled that employers must reimburse guestworkers for costs incurred in travel to their U.S. jobs, in reality such reimbursements were rare (see Arriaga v. Florida Pacific Farms Limited Liability Company, 305 F. 3d 1228 (11th Cir. 2002); Morante-Navarro v. T & Y Pine Straw Incorporated, 350 F.3d 1163 (11th Cir. 2003); but see Castellanos-Contreras v. Decatur Hotels Limited Liability Company, 622 F.3d 393 (5th Cir. 2010)). Once the planters began work, they faced wage-and-hour abuses. Often employers underreported the workers’ hours, so that pineros might end up with only $25 after working a twelve-hour day (see Southern Poverty Law Center, supra, at 20). Under the terms of the H-2B visa program, however, they were not permitted to shop around for better working conditions.

If the pineros were at the bottom rung of the forest products industry ladder, the large paper companies were among the entities at the top. In the middle of the production ladder were the labor contractors who worked for the paper companies and other entities and hired the pineros; the contractors often used recruiters based in the workers’ home countries. These large labor contractors hired hundreds of workers per season. Small crews of pineros, supervised by crew leaders who had generally been promoted from among the workers themselves, traveled by van or truck to planting sites.

The Beginning of the Forestry Campaign

Outreach paralegal Roman Ramos of Texas Rural Legal Aid was one of the first to hear the stories of abuse and exploitation directly from the forestry workers themselves. At the time, however, regulations of the Legal Services Corporation (LSC) did not permit Texas Rural Legal Aid (as a recipient of LSC funding) to represent forestry workers with H-2B visas. Ramos could not find private pro bono counsel to help the workers, but he convinced longtime migrant farmworker advocate Greg Schell of non-LSC Florida Legal Services that something needed to be done.

In the fall of 1998 Jim Knoepp came to Florida Legal Services on a two-year Skadden Fellowship. Within months, Knoepp and Schell filed a class action lawsuit against labor contractor Frank & Kerry Enterprises and its individual owners, Frank and Catherine Stanley. The complaint alleged that the contractor failed to pay the required prevailing wage and failed to pay minimum wage and overtime (see Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201–219; Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801–1872). The case was settled, but the workers never received full payment. Instead the Stanleys shut down the company and filed for bankruptcy. The outcome was frustrating, but discovery in the case yielded information that helped guide the campaign.

The case demonstrated that the pinerosdirect employers could be held liable for their failure to pay workers properly. At the same time, judgments and settlements with small contractors brought little benefit to workers if they could not recover their unpaid wages. The pineros did not want judgments or settlements on paper—they wanted hard-earned money in their pockets. The small labor contractors had few assets—generally only vehicles and hand tools—and judgments against them could prove uncollectible if they stopped doing business.

Knoepp and Schell knew that the labor contractors were not operating in a vacuum. The paper companies who contracted them controlled much of the planting, including dictating the weather and soil conditions under which workers could plant, the handling of the seedlings, the methods of planting, and the planting tools used. The Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act define “employ” broadly as “to suffer or permit to work” (29 U.S.C. §§ 203(g), 1802(5)). Under this definition and the cases interpreting it, the paper companies were arguably joint employers with the labor contractors.

Suing the Paper Companies

Knoepp and Schell knew that suing the paper companies would be a big undertaking. They joined forces with a team at the non-LSC Legal Aid Justice Center in Charlottesville, Virginia, that over time included attorneys Mary Bauer, Derek Baxter, Tim Freilich, and Alex Gulotta and filed class action suits against International Paper, Champion International, and Georgia Pacific. The suits alleged that the paper companies were joint employers of the migrant tree planters with the labor contractors and sought recovery for the same kinds of wage-and-hour violations alleged in the case against Frank & Kerry Enterprises. The team sought to reform the industry from the top down.

The paper companies defended the lawsuits vigorously and attempted to leverage their comparatively limitless resources to maximum effect. With the workers back in their home countries, isolated in far-flung villages with limited access to telephones, the paper companies propounded extensive discovery requests. The only way for the workers’ attorneys to respond was to travel from town to town in central Mexico. By this time, Knoepp had joined the team at the Legal Aid Justice Center, and he, Freilich, and others spent long weeks traveling and holding meetings with the workers in Mexico to prepare and review discovery responses.

Back in the United States, the workers’ attorneys deposed the key leaders of several of the major labor contractors, hoping that they would help establish that the paper companies were joint employers of the tree planters. Despite a well-developed factual record, the district court ruled on cross motions for summary judgment that the paper companies were not joint employers and thus could not be held responsible for ensuring proper payment (Lizarraga-Ruiz v. Georgia-Pacific Corporation, No. 4:00cv37/RV/MCR (N.D. Fla. March 12, 2003); Gonzalez-Sanchez v. International Paper Company, No. 4:00cv36 (N.D. Fla. March 27, 2002); Martinez-Mendoza v. Champion International Corporation, No. 4:00cv34RV (N.D. Fla. March 18, 2002)).

The workers appealed to the Eleventh Circuit; they argued that the paper companies effectively controlled every aspect of planting and left nothing to the discretion of the labor contractors: the planting occurred on the paper companies’ land, under their planting specifications, and occasionally even under the direction and review of their employees. But the Eleventh Circuit held that the paper companies did not exercise sufficient control over the planters to qualify as joint employers (Gonzalez-Sanchez v. International Paper Company, 346 F.3d 1017 (11th Cir. 2003); Martinez-Mendoza v. Champion International Corporation, 340 F.3d 1200 (11th Cir. 2003)). The particularly harsh decision in Martinez-Mendoza indicated that the plaintiffs were not even close to meeting the test for joint employment; the decision said, for example, that “the weight of plaintiffs’ having worked on Champion’s lands might be that of a feather” (Martinez-Mendoza, 340 F.3d at 1214). Although of limited precedential value, the decisions were a low point in the forestry-worker campaign. More than five years in, the workers’ efforts to hold the paper companies liable as joint employers had failed.

Suing the Contractors

The Eleventh Circuit decisions did not say that the tree planters were being properly compensated for their work—they merely held that the paper companies were not the proper targets for these lawsuits. In light of the early experience with Frank & Kerry Enterprises and its owners’ bankruptcy, suing other large forestry contractors might lead to more uncollectible judgments. However, the tree planters were still not being properly paid, and some of the contractors were large companies with hundreds of employees and budgets in the millions of dollars. Ultimately, even if some of the judgments were uncollectible, the effort seemed worth making. If nothing else, the story of the widespread exploitation of migrant tree planters still needed to be told.

Knoepp and the growing team of advocates soon filed suit against four of the largest forestry labor contractors in the country—Eller & Sons Trees, Superior Forestry Service, Express Forestry, and Alpha Services—for failure to comply with wage protections under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. Mary Bauer had joined the Southern Poverty Law Center and started its Immigrant Justice Project, and Knoepp joined her and attorneys Andrew Turner and Kristi Graunke in Atlanta, while attorney Erin Trodden joined the Legal Aid Justice Center team in Charlottesville. Attorney Marni Willenson, first as a private attorney and then with Farmworker Justice, and private attorneys Brian Spears and Joshua Karsh soon joined the Southern Poverty Law Center and the Legal Aid Justice Center as cocounsel.

In the suits against the forestry contractors, the plaintiffs’ strategy was straightforward: move for certification of both the opt-in class under the Fair Labor Standards Act and the Rule 23 class under the Migrant and Seasonal Agricultural Worker Protection Act; obtain through discovery the defendants’ pay and planting records for the class and review them for indications that workers were shorted hours or improperly paid; depose the crew leaders who supervised the planters and recorded the hours worked and trees planted; depose the officers and higher-level personnel of the contractor; and move for summary judgment.

The four cases against the large labor contractors took different paths. Both the Express and the Alpha cases were settled after class certification was granted. Two of the cases against the largest contractors—Eller & Sons Trees and Superior Forestry Service—took much longer to resolve.

Eller & Sons Trees

Filed in 2005, the case against Jerry Eller personally and his company, Eller & Sons Trees, was huge, in both the number of tree planters involved and the money at stake. Eller was the largest of the forestry labor contractors, and the certified class included more than 4,000 H-2B workers from Mexico and Guatemala, with potential damages in the millions of dollars. Knoepp’s managing of massive amounts of data was key to moving the litigation forward. The underlying fact pattern was similar to the earlier cases against the paper companies and showed that the contractor had failed to compensate the workers properly. This time, however, the defendants unquestionably were liable for ensuring proper compensation of the workers (see De Leon-Granados v. Eller & Sons Trees Incorporated, 581 F. Supp. 2d 1295 (N.D. Ga. 2008)).

In this case, Eller had bet his entire company and even his personal assets that he would prevail. Ultimately he lost the bet. Rather than bring his company into compliance with the law, Eller shut down operations of Eller and Sons Trees and declared personal bankruptcy in 2010. The court entered a bankruptcy stay in the class action lawsuit.

Knoepp filed an adversary proceeding in bankruptcy court to ensure that if there were any assets available, the workers would have a seat at the table. Eller owned property in Georgia and Montana, but when Knoepp visited the property in Georgia, he began to doubt that the workers would recover significant money from the case. Photos from the appraiser who visited Eller’s property in Montana—a sorry tableau of worn furniture and broken farm equipment—erased any lingering doubts.

Under the terms of the settlement of the bankruptcy case, the stay was lifted and judgment was entered for the workers in the class action lawsuit in the amount of $11.8 million—at the time, the largest judgment ever under the Migrant and Seasonal Agricultural Worker Protection Act. But the judgment will be largely uncollectible. After six years of litigation, only the twenty-six workers who were named plaintiffs or who affirmatively opted in the lawsuit will divide approximately $57,000. Jerry Eller may have lost his company and his bet, but the 4,000 pineros did not exactly win.

Superior Forestry Service

In 2006 the Legal Aid Justice Center, Southern Poverty Law Center, and private attorneys Willenson and Karsh filed, against Superior Forestry Service, a lawsuit that ultimately included five key company personnel as defendants in their individual capacities. Once again, the fact patterns were similar to the earlier cases, this one on behalf of more than 2,200 migrant tree planters on H-2B visas.

Soon after the case began, workers started reporting that company supervisors were openly discouraging them from participating in the lawsuit and were threatening retaliation. In response, attorneys for the pineros requested a protective order. The judge granted the order “based upon proof that [a Superior] crew leader had engaged in acts of coercion and retaliation against opt-in Plaintiffs” (Memorandum at 4, Rosiles-Perez v. Superior Forestry Service Incorporated, No. 1:06-cv-0006 (M.D. Tenn. July 28, 2009)). The order prohibited the defendants “from directing, permitting, or undertaking, either directly or through any employee, agent, or other intermediary, activities that intimidate, threaten, restrain, coerce, or in any manner discriminate against plaintiffs, putative class members, witnesses, potential witnesses, or their family members” (Protective Order at 2, Rosiles-Perez v. Superior Forestry Service Incorporated, No. 1:06-cv-0006 (M.D. Tenn. May 23, 2006)).

With the protective order in place, Willenson tenaciously held the defendants to its terms. The judge found that Superior violated the order by not instructing its employees immediately about the protective order. Not surprisingly, company supervisors who had never been told about the protective order did not change their behavior to comply with its terms.

In September 2008 the judge again found that one of the defendants’ supervisors had violated the protective order by communicating with putative class members about the merits of the lawsuit. He also found that the defendants had failed to take necessary action to prevent such violations, again failing to instruct their crew leaders about the protective order. The judge determined that the objective of “their clear failure to comply … was to threaten workers with adverse job and other consequences if they joined this action” (Memorandum at 13, Rosiles-Perez v. Superior Forestry Service Incorporated, No. 1:06-cv-0006 (M.D. Tenn. Sept. 5, 2008)). The court extended the opt-in period for putative class members to join and tolled the statute of limitations. Then the judge got creative.

He ordered Superior to pay for the plaintiffs’ counsel to arrange and conduct face-to-face meetings with putative class members in Mexico. Superior also had to pay for broadcast notice about the meetings. Freilich and Southern Poverty Law Center paralegal Viridiana Guido traveled to Oaxaca, where they had arranged to have meeting announcements on the radio in the areas where groups of workers lived. In one area, they hired a car with a loudspeaker on the roof to drive the streets of the town announcing their arrival. In other areas, groups of kids would be sent out to the fields to announce that there was going to be a meeting.

Of all the places where meetings were scheduled, the city of Tlaxiaco held the greatest promise for a large turnout. Hundreds of workers lived in the area, and early reports indicated that people were hearing the radio spots and knew about the meeting scheduled for November 12, 2008, at 10:00 a.m. in the central plaza. At 10:00 on the morningTlaxiaco Plaza of the meeting, Freilich walked directly to the base of the clock tower in the center of the plaza. Although many people were milling about the plaza, no one approached. A few minutes later, one of the named plaintiffs, Jesus Santiago Salmoran, arrived. After a quick greeting, Salmoran mentioned that Manuel Morales—the main recruiter for Superior Forestry in Mexico—was seated at one of the entrances to the plaza overlooking the meeting site, in clear violation of the court’s order not to interfere with the workers’ participation in the lawsuit. He was sitting with two men whom Salmoran did not know; they were just watching.

Freilich pretended to take pictures of Salmoran and Guido but instead captured evidence of Morales’s presence in the plaza at the time of the meeting. For the first time in the long-running campaign, Freilich was concerned for his safety; he was exposed and vulnerable in the center of the plaza. He continued to talk to Salmoran and then noticed that Morales had disappeared. Freilich left the clock tower and cautiously approached the area where Morales had been seated. He found him standing behind a column of the building’s arcade, facing the other direction and talking on a cell phone in Spanish. “Don’t worry,” Freilich heard Morales say on the phone as he approached him from behind, “They haven’t even seen me.”

“I saw you, Manuel,” Freilich countered. Morales got flustered and hung up the phone. Freilich handed him a business card, introduced himself, and told Morales that his presence in the plaza during the meeting with the workers was not welcome and asked him to leave.

“This is my town, this is my plaza, and no one can tell me I’m not allowed to be here,” responded Morales defiantly. Months later, the judge disagreed (see Memorandum at 5–11, Rosiles-Perez v. Superior Forestry Service Incorporated, No. 1:06-cv-0006 (M.D. Tenn. July 28, 2009)).

In granting the plaintiffs’ third motion for contempt, the judge wrote:

Morales’s lingering and other behavior thereafter, was highly likely to deter any class members, potential class members, or witnesses with an interest in continued employment at Superior Forestry from meeting with Plaintiffs’ counsel…. Morales is a named Defendant and is Superior Forestry’s key recruiter and manager in Mexico. Given Morales’s power to determine which workers are placed on Defendants’ hiring list, the economic vulnerability of the members of the Plaintiffs’ class, the seasonal nature of their employment and limitations of their work visas, the Court finds that Morales’s presence in the plaza was intimidating to the putative class members [Memorandum at 15–16, Rosiles-Perez v. Superior Forestry Service, Incorporated, No. 1:06-0006 (M.D. Tenn. July 28, 2009)].

After recounting the defendants’ numerous violations of the protective order, the judge delivered a crushing sanction: “to bar the Defendants from submitting any proof to contest the Plaintiffs’ proof of damages” (id. at 21). The court believed that the defendants were trying to limit the number of plaintiffs and the defendants’ potential financial liability. It designed the sanction “to protect the integrity of the class and collective action and the judicial process” (id.).

Superior’s exposure was suddenly huge. If the workers won on the question of liability, the defendants essentially could not contest how much the workers were owed. Knoepp and a law student named Michael Hollander had recreated the Superior crews’ travel itineraries, plotted the locations on Google Maps, and calculated that the workers had spent many hours traveling between work locations for which they had not been compensated. The plaintiffs’ team was confident that if the case went to trial, the pineros would be able to prove that they were owed millions of dollars of unpaid wages. After the judge’s contempt order, the defendants would not be allowed to put on any proof showing otherwise. The case went to mediation, paving the way for a final settlement where the defendants agreed to pay $2.2 million to the workers, plus costs and attorney fees of $550,000, and up to $150,000 for administration of the settlement agreement. The defendants agreed to abide by the statutory requirements for record keeping, preemployment wage deductions, and compensable time (including compensable travel time). The settlement contained the personal guarantees of the individual defendants and other shareholders of Superior Forestry Services. All of the payments under the settlement agreement have been made.

After a dozen years and a mixed bag of litigation outcomes, a large labor contractor finally had been held accountable and the workers got paid. These stories, combined with the long-running efforts of other advocates across the country in both the courts and Congress, and the Southern Poverty Law Center’s groundbreaking report made the case for increased oversight and reform of the H-2B program. In 2008 the law was changed to allow LSC-funded legal aid programs to represent H-2B forestry workers (see Consolidated Appropriations Act of 2008 § 540).

Authors’ Acknowledgments

First and foremost, we wish to acknowledge the courage of the numerous pineros who participated in this campaign. Second, we want to recognize the tireless efforts of our many colleagues in the immigrant advocacy community to reform the H-2B visa program and to expand H-2B worker eligibility for federally funded legal services. And, third, six of the attorneys mentioned in this article are alumni of the Skadden Fellowship Program. The collaboration and creative advocacy supported by the Skadden Fellowship Program helped make this campaign possible.

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