Meatpacking Union Says H-2B Change Is 'Betrayal' of Workers

By Rachel Stone
Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.

Sign up for our Food & Beverage newsletter

You must correct or enter the following before you can sign up:

Select more newsletters to receive for free [+] Show less [-]

Thank You!



Law360 (May 20, 2020, 5:57 PM EDT) -- A recent U.S. Department of Homeland Security decision easing restrictions on the H-2B visa program threatens the safety of meatpacking workers amid the coronavirus pandemic, according to America's largest food and retail union.

The United Food and Commercial Workers International Union decried the administration's decision to make it easier for seasonal workers to stay in the country longer and to switch employers. Now employers can more easily replace American workers who have been sickened with COVID-19 with migrant workers, while shirking safety protocols, the union said.

"America's brave meatpacking workers are not replaceable," UFCW International President Marc Perrone said in a statement Tuesday. "They are putting their lives on the line every day, with dozens dying and over 10,000 infected, to make sure millions of Americans have the food they need during this deadly outbreak."

DHS made its temporary final rule change earlier this month as workers at meatpacking plants around the country began to fall ill with the virus, and the U.S. suspended routine visa processing aside from returning H-2A workers.

The rule change followed a warning from the pork industry last week that as sick workers leave shifts unfilled in plants across the country, the resulting labor shortage could have "severe economic fallout in rural communities."

Meatpacking plants — which often hire H-2B workers — have become COVID-19 hot spots, with plants across the country forced to shutter operations temporarily as large swaths of their workforce fall ill.

Employees often work in close quarters for long hours, which could exacerbate their risk for contracting the virus, according to a report from the Centers for Disease Control and Prevention earlier this month. Job repercussions for missing work might also force workers to show up to the plants even if they have symptoms of COVID-19, the CDC report posited.

The Trump administration tried to keep meatpacking plants open during the COVID-19 crisis by identifying meat and poultry processing facilities as "critical infrastructure" and invoking the Defense Production Act to keep them running.

But when the plants were forced to reopen, the government's decision to relax the guest worker policy instead of enforcing safety standards at the plants put workers at risk, the UFCW said.

"This new policy is a betrayal of America's meatpacking workers," Perrone said. "An American president should be protecting American jobs and the food workers who are keeping our country running, not replacing them or exploiting this crisis to further enrich meatpacking companies."

While the union's announcement highlighted the risk to American workers who could be replaced by "untrained guest workers," Evy Peña of migrant workers' rights organization Centro de los Derechos del Migrante told Law360 the expansion of the guest worker program also posed a hazard to H-2B visa beneficiaries.

"Guest worker programs are expanding tremendously, but their protections are not being strengthened," Peña said Wednesday, noting that while guest workers are now considered essential employees, they have been excluded from stimulus relief programs, and most are not receiving hazard pay.

In addition, guest workers are disproportionately susceptible to falling dangerously ill from the virus since many of them live in overcrowded employer-provided housing and must travel long hours in crowded conditions to their work sites, Peña said.

"These rules and changes are just there to benefit employers at the expense of workers," she said. "When we're talking about health, safety and economic justice, policymakers should be considering all workers."

Matthew Bourke, a spokesperson for the DHS, told Law360 on Wednesday that the temporary changes to the H-2B requirements were made to protect businesses and U.S. workers, and help maintain the food supply chain during the pandemic.

The changes only apply to workers who are already in the country on H-2B visas, and the government is maintaining a cap of 66,000 H-2B visas until the end of 2020, Bourke said.

Easing these restrictions also reduces the reliance on illegal immigration, he added.

"H-2B petitioners must have an approved temporary labor certification that demonstrates there are no qualified U.S. workers available to perform the temporary services or labor involved in the petition and submit an attestation — swearing under penalty of perjury — that the H-2B aliens will perform services essential to the nation's food supply chain," Bourke said.

The UFCW declined to comment.

--Additional reporting by Suzanne Monyak and Nadia Dreid. Editing by Marygrace Murphy.

For a reprint of this article, please contact reprints@law360.com.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!