by Rene Tankersley, feature editor
In New Zealand, the Land Transport Safety Association’s rules are much stricter than U.S. Department of Transportation regulations, but lorry companies treat their truckdrivers very well. New Zealanders Ray and Cathy Hugill, who like other New Zealanders call themselves “Kiwis,” weren’t expecting to find heaven in the U.S. trucking industry, but they never anticipated a journey to hell either.
Their story began about 18 months ago, when they answered a recruiting advertisement to become truckers in the United States with a 73-truck operation based in Mount Vernon, MO, called New Rising Fenix Inc. They were lured by a classified ad they read in the New Zealand Herald newspaper back home in Aukland, NZ. The Hugills say they were interviewed in Auckland by Charlie Daniel, an owner of New Rising Fenix. They say Charlie travels to New Zealand a couple of times each year and personally recruits drivers for New Rising Fenix, hauling refrigerated freight throughout the Midwest and Southeast to the West Coast and Alberta and British Columbia, Canada. Officers listed on the company’s web site are: Cliff Strong, president; Martha Daniel, secretary-treasurer; Sandy O’Connor, controller; and Ruby (no last name listed), customer service. Because the Immigration & Naturalization Service and the Department of Labor limit the length of time foreign workers stay in the United States, drivers must return to New Zealand for three to six months, then obtain a new working visa before returning to America. Because many Kiwis don’t return for a second tour of duty with New Rising Fenix, the company must continually recruit more drivers. Ray estimates the company has gone through 450 drivers in the past two years. All new foreign drivers for New Rising Fenix were required to sign a statement prepared by the company’s immigration attorney David Froman to “provide some general advice to you concerning your new H-2B visa status for the company.” This basic information consisted of five numbered paragraphs:
1. The H-2B is NOT a free ticket to get you into the United States so you can go wherever you want and work for whomever you want.
2. Your H-2B status is “employer specific.” This means it is authorized for ONE EMPLOYER ONLY: “RISING FENIX INC.”
3. You may not legally work for any other trucking company or at any other job in the United States on this H-2B visa.
4. If you leave your employment with “Rising Fenix” prior to the end of your authorized period of employment, you will be responsible for reimbursing the company for its expenses in obtaining this visa for you. This obligation will be enforced through all legal means.
5. Your H-2B status will expire on 30 SEP 2001 or 10 days after you cease working for “Rising Fenix,” whichever comes first. You must leave the United States by that date. If you remain in the United States after that date, you will be out of status and subject to arrest and deportation.
As an experienced truckdriver, Ray began driving as soon as he received his U.S. commercial driver’s license shortly after arriving in the states and spending a few days in the company’s “bunkhouse,” a three-bedroom, two-bath mobile home in Mount Vernon. He said the bunkhouse reeked so badly, he and most of the 10 Kiwis, who were to share the trailer, rented motel rooms. Cathy Hugill, a 53-year-old nurse with no trucking experience, arrived later and, along with 10 to 15 other Kiwis, would complete New Rising Fenix’s CDL training program before joining Ray as a team driver. Originally, the company promised five to six weeks of training, complete with board and lodging. First, the five to six weeks turned into 10 weeks in the company trailer, which she laughingly calls the “Mount Vernon Hilton.” Within two days of arriving in the states, Cathy received her learner’s permit. She and the other inexperienced drivers would be trained later by New Rising Fenix’s safety director Don Massengill and receive their CDLs. “There were about 10 of us women and only two young men. The training truck was being used for a paying load, so we spent several days cleaning up the place, and another few weeks mucking around before we started training.” The meals supposedly provided were once a day and consisted of fast-food restaurant vouchers or $5 cash. If they weren’t present when vouchers or money was distributed, they were on their own for meals that day. There was no telephone at the trailer, and they were not allowed to use the office telephones for personal calls. If they wanted to call home, they must walk two miles into town to use a payphone. In order to reach New Zealand at a reasonable hour, it meant going into town at 1 a.m. The Hugills believe the company deliberately made it hard for them to call home in order to isolate them and keep them from returning home early. As for training received, Cathy reported she was trained for a total of five hours on a “paddock,” or unpaved, rough track, on which she never got out of third gear and was not taught about downshifting. She said she was provided a CDL test booklet and given the correct answers to the questions. The very first time Cathy says she drove on the interstate was during the test for her CDL. Cathy informed OOIDA of another inexperienced team Rachel and Craig Cloag, who received their CDLs in three days, then were put into a truck immediately. This couple was later involved in an accident in which the truck burned completely along with all of their belongings. Once Cathy received her CDL and joined Ray on the company truck, he says they ran as a team, making 32-cents per mile. Ray says they were expected to run 24 hours a day, seven days a week despite Cathy’s inexperience. Because Cathy was inexperienced, Ray did most of the driving, allowing her only to drive in the safest conditions. He reported he was only able to get two to four hours of sleep per day. Ray said New Rising Fenix would use the QualComm to wake them up if they stopped for rest wanting to know why they had stopped. He reported running 84,000 miles in less than six months, and described a series of required runs. A trip from Iowa to California was dispatched for 33 hours, three hours less than it would have taken to drive straight through. Then, they were dispatched to deliver a load from Los Angeles to St. Louis within 24 hours, then sent to Denver. Ray reported being too “knackered” (that’s Kiwi for tired) to make it to Denver, so they stopped and slept for two hours. Although they arrived before the receiver’s dock opened, they were immediately disciplined by New Rising Fenix for being two hours later than dispatched. Ray and Cathy detailed numerous mechanical defects in the equipment, but when they reported the defects to the company, they were told to either take the loads as instructed with the assigned equipment or they would be deported back to New Zealand. When equipment was damaged, regardless of fault, the drivers were charged for the damage. When the engine quit and the truck went down an embankment, Ray says he was charged $1,800 for the two tow trucks that pulled the truck back onto the road. He reports he was charged another $1,400 after he clipped a truck at a truckstop fuel island and $460 for a trailer tire that ruptured after running over something in the road. Ray and Cathy each were charged $422 for two pallets of cargo allegedly missing from a load. The Hugills tried several times to resign early, but they say the company demanded they stay until their visas expired at the end of September. They say Charlie threatened to charge them $100 day for the visas and $2,000 for Cathy’s training if they left early. After giving several weeks notice of their early resignation, the company continued to dispatch them until they finally turned in their truck Sept. 16 and walked away. “We heard most drivers say the only way to get away from the company is to leave the truck somewhere and bugger off,” Cathy said. “Now I know why. We rented a U-Haul truck because that was the only way out of Missouri. There were no rental cars available for a one-way trip.” When the couple returned to the company’s office for some personal photographs and to inquire about their final pay, Charlie ordered them off the property and asked them to pay the $2,000 (for Cathy’s training) or it would be taken out of their final settlement. They had met OOIDA members Chris Songer and Paul Sasso on the road before they quit. Sasso had encouraged them to call the association and talk to Sylvia Dodson at OOIDA’s Business Services department. They were hesitant to come to the OOIDA headquarters while still employed, but they did call Dodson. On Sept. 17, Ray and Cathy walked into OOIDA’s offices in Grain Valley, MO, and announced they had quit and turned in their truck. They then told the whole story to Gary Green, OOIDA’s director of conflict resolution. The Hugills left the states on Sept. 27 for their native New Zealand after visiting their son, who lives in Denver. After talking with OOIDA and its members, the Hugills are satisfied to know all U.S. trucking companies do not operate like New Rising Fenix, and are planning a return trip in the spring to drive for another trucking company. Charlie Daniel and Don Massengill of New Rising Fenix deny the Hugills’ allegations. Daniel says the Hugills are simply disgruntled because he refused to renew their visas and are trying to get out of the agreement with him. He maintains that his company operates legally and didn’t hesitate to mention competitors who smuggle drivers into the country illegally, using visitor visas to hire drivers. Green has asked Missouri’s Federal Motor Carrier Safety Administration state director Joe Boyd to investigate New Rising Fenix, after hearing about the alleged safety violations. In a letter dated Sept. 19, 2001, Green told Boyd, “These people have raised several points that may warrant investigation by DOT and the INS.”
Green told Land Line, “Involuntary servitude is alive and well in the trucking industry.”
Q: What is an H-2B visa?
A: H-2B visas allow approved U.S. companies to hire temporary non-agricultural alien workers for jobs they are unable to fill with qualified U.S. workers. Q: How long may a recipient of an H-2B visa stay in the United States?
A: One year. Q: How many H-2B visas are issued each year?
A: No more than 66,000 H-2B visas may be issued each year. Q: Must an H-2B alien worker have the skills required for the job, or can they be trained after arriving in the United States?
A: Job requirements and any training must be specified by the employer in the labor certification application. Q: Are recipients of H-2B visas covered by the Department of Labor regulations? Are they subject to federal and state income tax laws and FICA withholding?
A: Yes Q: Can employers charge H-2B visa recipients for training, room and board, damages to company equipment, or other charges related to accidents or alleged shortages?
A: It depends, if these deductions are specified in the employment contract. Q: What are the employer’s requirements when the worker’s visa expires?
A: The employer must notify the INS only if the employee quits the job before the visa expires. However, the employer must not continue working the employee past the visa expiration date. Q: Who pays the employee’s transportation costs?
A: Although the employee must pay transportation costs to the United States, the employer must pay transportation costs to send the worker home at the expiration of the visa or if the worker is fired or laid off. The employee is responsible for the costs if he or she quits before expiration of the visa.
Sources: Michael Defensor of Immigration and Naturalization Service’s Office of Business Liaison; “Employer Information Bulletin 8: Temporary Alien Labor to Fill Temporary Needs”