The Migrant Unit, a project of South Carolina Legal Services, provides free legal assistance to migrant and seasonal farmworkers throughout South Carolina. Although services are provided statewide, the Unit is housed in Charleston and consists of two attorneys (a Managing Attorney and a Staff Attorney) and one paralegal. In the summer time, the Unit hosts two summer interns through Student Action with Farmworkers (SAF).
During the summer time, the majority of the Unit’s work consists of outreach to farm labor camps. Farm labor camps can be provided or arranged for migrant and seasonal farm workers during the duration of their employment.
The legal work includes employment law and immigration law on behalf of victims of crime, domestic violence, and labor trafficking on behalf of migrant and seasonal farmworkers. Employment cases consists of representation of migrant and seasonal farmworkers in litigation for claims under the Migrant and Seasonal Agricultural Worker protection Act (AWPA), the Fair Labor Standards Act, the H-2A and H-2B (for qualifying work) federal temporary guest worker programs, and common law contracts.
Select from the topics below if you want to learn more about the different protections for migrant and seasonal farmworkers.
- Domestic migrant and seasonal agricultural workers
- H-2A temporary agricultural guest workers
- H-2B temporary guest workers performing forestry work
- Victims of Crime
- Victims of Labor Trafficking
Domestic Migrant and Seasonal Farmworkers
- Description of Migrant and Seasonal Agricultural* Workers
- Migrant agricultural workers are employed in agricultural employment of a seasonal or temporary nature and are required to be absent overnight from his permanent place of residence. These workers are also referred to as domestic/U.S. workers because they reside in the U.S.
- Seasonal agricultural workers perform substantially the same types of jobs or duties as migrant workers, but are not required to leave their permanent place of residence. Seasonal workers have nearly the same rights as migrant workers except that the working arrangement disclosures do not have to be automatically provided – they have to be requested by the worker. These workers are also referred to as domestic/U.S. workers because they reside in the U.S.
- Protections and SCLS’ work on behalf of migrant and seasonal agricultural workers
- The Migrant and Season Agricultural Worker Protection Act (AWPA) establishes employment standards related to wages, housing, transportation, disclosures regarding working terms and conditions, and recordkeeping.
- The Unit provides migrant and seasonal farmworkers legal representation in lawsuits and/or referrals to enforcement agencies like the Department of Labor – Wage Hour Division to assist in the enforcement of their rights under the AWPA and other applicable federal and state labor laws.
* Agricultural work includes, planting, cultivating or harvesting crops. Some processing plant employees qualify as migrant workers depending on their job duties and the nature of their employment relationship.
* Some processing plant and packinghouse workers are also considered migrant and seasonal agricultural workers and are covered by the same protections as traditional migrant and seasonal agricultural workers.
H-2A Temporary Agricultural Guest Workers- Who is an H-2A temporary agricultural guest worker? An H-2A temporary agricultural guest workers come to the U.S. to perform temporary agricultural labor. The program is used by growers to hire workers from other countries when they are unable to find U.S. workers to meet their labor needs. To bring workers from other countries employers must also meet other pre-requisites.
- What are the protections? The H-2A program includes some basic requirements to protect U.S. workers from negative effects on their wages and working conditions, as well as protect foreign workers from exploitation. Summary of current protections:
- An H-2A employer must provide employees accurate information about the terms and conditions of employment offered.
- Wages must be at least the higher of: (a) the local “prevailing wage” as determined by DOL and state agencies; (b) the state or federal minimum wage, or (c) the “adverse effect wage rate” (AEWR).
- Recruitment obligations require employers to use the interstate Employment Service system (a joint system of the federal government and state workforce agencies) and private-market methods of recruiting workers to locate U.S. workers.
- The “fifty percent rule” provides job preference for U.S. workers. It requires H-2A employers to hire any qualified U.S. worker who applies for work until 50% of the season has ended.
- Three-fourths minimum work guarantee requires that employers provide workers with employment opportunities for at least three-quarters of the number of hours in the job offer (the contract) or pay for any shortfall (with exceptions for Acts of God).
- H-2A workers who complete half the season must be reimbursed for the transportation and subsistence costs associated with travel to the place of employment. Workers who complete the season in full must be paid their transportation home.
- H-2A employers must provide housing for their workers at no cost to the worker. The housing must meet federal and state safety standards.
- H-2A employers must provide workers’ compensation insurance for job-related injuries.
- How can the Migrant Unit help when an employer does not comply with worker protections? The Unit offers legal representation to H-2A temporary guest workers in the enforcement of their rights under the H-2A regulations and other applicable federal and state labor laws via private action (lawsuits). The Unit also refers H-2A temporary guest workers to enforcement agencies, like the Department of Labor – Wage and Hour Division (DOL WHD) and the Equal Employment Commission (EEOC), among others.
- An H-2A employer must provide employees accurate information about the terms and conditions of employment offered.
- Wages must be at least the higher of: (a) the local “prevailing wage” as determined by DOL and state agencies; (b) the state or federal minimum wage, or (c) the “adverse effect wage rate” (AEWR).
- Recruitment obligations require employers to use the interstate Employment Service system (a joint system of the federal government and state workforce agencies) and private-market methods of recruiting workers to locate U.S. workers.
- The “fifty percent rule” provides job preference for U.S. workers. It requires H-2A employers to hire any qualified U.S. worker who applies for work until 50% of the season has ended.
- Three-fourths minimum work guarantee requires that employers provide workers with employment opportunities for at least three-quarters of the number of hours in the job offer (the contract) or pay for any shortfall (with exceptions for Acts of God).
- H-2A workers who complete half the season must be reimbursed for the transportation and subsistence costs associated with travel to the place of employment. Workers who complete the season in full must be paid their transportation home.
- H-2A employers must provide housing for their workers at no cost to the worker. The housing must meet federal and state safety standards.
- H-2A employers must provide workers’ compensation insurance for job-related injuries.
H-2B Temporary Guest Workers
- Who is an H-2B temporary non-agricultural guest worker? A guest workers who comes to perform non-agricultural jobs on a temporary or seasonal basis in the U.S. An employer may use H-2B temporary guest workers from other countries when they are unable to find U.S. workers to meet their labor needs. To bring workers from other countries employers must also meet other pre-requisites.
- What are the protections? The H-2B program includes some basic requirements to protect U.S. workers from negative effects on their wages and working conditions, as well as protect foreign workers from exploitation. Summary of current protections:
- H-2B employer must hire any U.S. worker who applied for the job until 21 days before the start of the job order.
- H-2B employer must provide accurate, written information about the terms and conditions of employment prior to the start of the employment. This information must be in the H-2B worker’s language.
- H-2B worker must receive payment of wages at least every two weeks at the Adverse Effect Wage Rate (AEWR) and for any deductions not required by law, the worker must be informed of them in writing.
- H-2B worker must receive a statement of earnings (pay stubs) for each pay period.
- Three-fourths minimum work guarantee requires that employers provide workers with employment opportunities for at least three-quarters of the hours promised in the job order every 12-week period or 6-week period, for jobs under 120 days. An employer that cannot comply with the three-fourths minimum work guarantee, must pat any shortfall (with exceptions for Acts of God).
- H-2B workers who complete half the season must be reimbursed for the transportation and subsistence costs associated with travel to the place of employment. Workers who complete the season in full must be paid their transportation home.
- What about H-2B temporary guest workers and the Migrant and Seasonal Agricultural Worker Protection Act (AWPA)?
- Although the H-2B program, allows the employment of foreign workers in various low-skilled jobs, the Migrant Unit can only represent workers whose job involves agriculture.
- Agricultural jobs include pine straw baling and gathering, forestry, and other similar jobs.
- Workers who given H-2B visas and perform agricultural labor (i.e., pine straw gather and forestry) are protected under the AWPA.
- How can the Migrant Unit help when an employer does not comply with worker protections? The Unit offers legal representation to H-2B temporary guest workers in the enforcement of their rights under the H-2B regulations, the AWPA, and other applicable federal and state labor laws via private action (lawsuits). The Unit also refers H-2B temporary guest workers to enforcement agencies.
Victims of Crime
The Migrant Unit provides services and legal representation to undocumented migrant and seasonal farmworkers who are victims of crime. Services to victims of crime include referrals to victim assistance programs and/or resources. Legal representation includes assistance in obtaining immigration relief (U Nonimmigrant Status) when a migrant and seasonal farmworker is a victim of a qualifying crime under immigration law.
Victims of Trafficking
The Migrant Unit provides services and legal representation mainly to migrant and seasonal farmworkers who are victims of labor trafficking. Services to victims of trafficking include referrals to trafficking victim assistance programs and/or resources. Legal representation includes assistance in obtaining immigration relief (T Nonimmigrant Status), referrals to agencies like the Department of Labor – Wage and Hour Division, and civil litigation under the Trafficking Victims Protection Reauthorization Act (TVPRA) and other federal and state labor laws.
Contact Us
If you want to know whether you qualify for our services or to learn more about the Migrant Unit, please call 1-888-720-2320 ext. 2168 or 1-843-266-2168. We can also be reached at 1-843-266-2176. Our migrant attorneys and paralegal can communicate with you directly in English or Spanish. If you speak another language, we can arrange for interpretation.
