134,368 Unnamed Workers: Client-Centered Representation on Behalf of H-2A Agricultural Guestworkers

Forthcoming in: NYU Review of Law and Social Change Each year, tens of thousands of workers, mostly from Mexico and mostly men, enter the United States on temporary visas to labor in its agricultural fields. H-2A workers, as they are known, are the ultimate outsiders: contracted by a single employer for a specified period, they face dangerous labor and housing conditions, without the option of seeking other employment and with no other ties to or rights in the United States. Despite a robust regulatory scheme that mandates terms including their hourly wage and expenses their employer is required to cover, H-2A workers are frequently exploited, experiencing everything from wage theft to the extraction of unlawful recruitment fees. To compound the problem, the systems in place to redress these wrongs are woefully insufficient: government enforcement is weak, and H-2A workers’ ability to take direct action is undercut by factors such as their temporary and isolated presence in the United States and the intentional limitations on their rights and access to legal representation under federal law. Despite these constraints, there are examples of H-2A workers who have filed civil lawsuits against their employers. Having done so, they still encounter obstacles to their full participation in the process, due to the lack of familiarity with the U.S. legal system and the likelihood that the litigation will continue while they are in their home countries. In this article, I explore strategies for minimizing the disconnect between H-2A workers and the process of civil litigation, and consider the ways in which litigation itself can be an empowering process and a vehicle for amplifying worker voice. Using the frame of client-centered lawyering, and drawing on two recent case studies of community lawyering among low-wage immigrant workers, I discuss the methods that lawyers representing H-2A workers can employ during the various stages of a civil lawsuit in order to ensure that their clients are not again relegated to an outsider status. In particular, I focus on four “moments” in the life of a case: the decision to file a lawsuit, the drafting of the complaint, discovery, and trial. Moreover, I also consider how client voice can be amplified outside of the four corners of a lawsuit, and provide strategies for how to amplify worker voice while settling cases and discuss the downstream, indirect effects of litigation on H-2A worker empowerment. By putting these considerations into practice, I argue that litigation itself can serve as an empowering experience for H-2A workers and shed light on the abuses within the H-2A program more generally.