Private Civil Remedies: A Viable Tool for Guest Worker Empowerment

Abstract

Despite the well known abuses of immigrant workers who come to the U.S. on H-2A or H-2B visas, the federal government has failed to curb exploitation within its guest worker programs. At the same time, the government has created certain private civil remedies that immigrant workers can use to address workplace abuses. Existing critique has focused on the systemic flaws of the guest worker programs and the need for government reform. This Article takes a different approach by arguing that guest workers, who are severely disadvantaged in the political arena, should take advantage of this devolution of rights from the federal government to the individual worker. In particular, it examines how private civil remedies under the Trafficking Victim Protection Act, Racketeer Influenced and Corrupt Organizations Act, and antidiscrimination laws, are particularly well suited to address guest worker exploitation. These private civil remedies give workers agency to vindicate their rights without having to rely on governmental institutions. Further, they allow workers to participate in reshaping the boundaries of the law and produce counternarratives that can confer legitimacy on a movement’s claims. Despite certain constraints related to the use of judicial forums, this Article concludes that private civil remedies can operate as a tool for empowerment of guest workers.