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Law360 (February 10, 2021, 5:54 PM EST )
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| Rebecca Galemba |
To adequately protect workers, the new administration must disentangle immigration enforcement from the criminal justice system and its seepage into workplace enforcement, and upgrade labor standards enforcement more broadly.
The bill proposes to address workplace exploitation by expanding access to U visas[2] for victims of employer abuses, protecting workers who suffer retaliation from deportation so they can collaborate with investigations, and creating a commission to improve employment verification processes and more effectively punish employers who violate employment laws.
Wage and hour laws already cover all workers laboring in the U.S. regardless of legal status,[3] and retaliation for lodging a complaint about labor law violations is illegal. The Immigration Reform and Control Act, or IRCA, also imposed sanctions on employers who knowingly hire unauthorized workers. However, labor violations, like wage theft — or the denial of legally owed wages and benefits — are rampant because employers can get away with them.
My research with immigrant day laborers in Colorado shows that labor abuses are facilitated by the continued criminalization of immigrants and declining labor standards enforcement,[4] which undermine the working conditions and wages of all workers.[5] Violations remain incentivized by four factors.
First, employers have been rarely punished under IRCA[6] and enjoy wide leeway in demonstrating compliance.[7] Because IRCA did not just criminalize illegal hiring, but also made it illegal for unauthorized workers to hold a job, immigrants tend to suffer the consequences instead.[8]
Despite wider usage of E-verify technology to verify employment eligibility, the same loopholes persist.[9] Moreover, to avoid accountability for hiring unauthorized workers under IRCA, employers began to rely more on subcontracting arrangements to indirectly access workers.
These practices not only clouded employers' legal responsibilities, but also depressed wages and increased workers' vulnerability.[10] Sanctions did not interfere with employers' ability to access undocumented labor, but shifted the corresponding liabilities and costs onto immigrant workers.[11]
Day laborers frequently reported that employers not only tried to distance themselves from responsibility for unpaid wages by misclassifying them as independent contractors or through multiple layers of subcontractors, but also by claiming they never hired them.
Second, despite a memorandum of understanding that sets to limit immigration enforcement from interfering in the exercise of labor rights, any semblance of a barrier between immigration and labor law has crumbled.[12] U.S. Immigration and Customs Enforcement operations that target workplaces, often initiated to ostensibly combat worker mistreatment, instead end up further incentivizing such violations.[13]
This is especially the case when ICE operations arrive in the immediate aftermath of, or even during, a labor or safety investigation, at the behest of employers, and are concentrated in workplaces where workers are unionized or organizing to advance their rights.[14]
Workers are frequently not screened to determine eligibility for U visas, which can provide protection to victims of crimes who collaborate with law enforcement investigations; nor have U visas been sufficiently extended to labor trafficking victims.[15] Despite prohibitions on retaliation, enforcement is scant.[16]
The intrusion of immigration enforcement into the workplace does not help protect workers; it ensures they will not come forward. As one immigrant worker related, "If immigration wants me, they can just take me." This seepage converts ICE's own stated goal of deterring the incentive to hire unauthorized workers into a relatively low-risk advantage.[17]
For example, a series of coordinated ICE raids on meatpacking plants owned by Swift & Co. in 2006 led to the arrest of over 1200 immigrants in six states — the largest workplace raid at the time — most of whom were deported without access to counsel or appeal.[18] In contrast, the company's corporate officials were never prosecuted.[19]
A year after the raids, Swift was sold to the Brazilian company JBS SA[20] Last spring, the JBS plant in Greeley, Colorado, suffered a devastating coronavirus outbreak, leading to six deaths owing to lax safety protocols, and poor and overcrowded working conditions.[21]
Third, the increasing fusion between the criminal justice system and immigration enforcement apparatus, a public discourse that criminalizes immigrants, and information sharing between local law enforcement and ICE, prevents immigrants from reporting labor violations and workplace safety concerns.
The ballooning immigration enforcement budget, mirrored by an inversely withering labor standards enforcement budget, does little to convince workers that violators will be caught or punished.[22] Instead, it instills the fear that any encounter with law enforcement may invite immigration consequences.[23]
Immigrant workers like day laborers, who frequently suffer from the illegal withholding of their earned wages, fear not only that police would not take their reports seriously, but could also take them in instead.
Fourth, preventing the exploitation of immigrant workers is intimately tied to the wider degradation of labor standards enforcement,[24] at-will employment, the fissuring of workplaces into smaller units that are more difficult to monitor,[25] and deunionization, which impacts all workers.
Risks may be more pronounced in workplaces with high concentrations of immigrants, but also affect other precariously employed workers, who are also wary that any attempt to upgrade working conditions or file a complaint may lead to job loss, illegal retaliation or other forms of backlash that are harmful but may fail to reach any legal threshold.
Providing a pathway to citizenship and improving protections from retaliation and deportation are critical steps toward preventing exploitation. Narrowing priorities for deportation and signals that the administration will strengthen the right to organize are also promising signs. However, they must be enforced.
To be effective, policy approaches should address the societal criminalization of immigrants, the merger of the criminal justice and immigration systems that places all noncitizens at risk, and bolster labor standards enforcement to keep pace with a 21st century economy and the changing nature of work.[26] Otherwise, we risk having work grow more precarious for everyone.
Rebecca Galemba is an associate professor at the University of Denver's Josef Korbel School of International Studies.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System (January 21, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/.
[2] The U nonimmigrant status visa (or U visa) was created as part of the Victims of Trafficking and Violence Protection Act. It allows victims of "certain crimes who have suffered mental and physical abuse" and who collaborate with law enforcement to remain the country. See U.S. Citizenship and Immigration Service, Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-criminal-activity-u-nonimmigrant-status.
[3] See U.S. Department of Labor Wage and Hour Division, Handy Reference Guide to the Fair Labor Standards Act (September 2016), https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa.
[4] See Galemba, Rebecca. "They Steal Our Work": Wage Theft and the Criminalization of Immigrant Day Laborers in Colorado, USA. European Journal on Criminal Policy and Research, (2021).
[5] See Horton, Sarah and Angela Stuesse. Criminalizing Immigrants Hurts All Workers as IRCA Turns 30, Daily Kos (November 3, 2016), https://www.dailykos.com/stories/2016/11/3/1590562/-Criminalizing-Immigrants-Hurts-All-Workers-as-IRCA-Turns-30.
[6] See National Immigration Law Center, Worksite Immigration Raids (January 2020), https://www.nilc.org/issues/workersrights/worksite-raids/.
[7] See Lee, Stephen.Workplace Enforcement Workarounds, 21WM.&MARYBILL Rts.J.549, (2012).
[8] See Bacon, David. Justice Deported, The American Prospect (December 14, 2006), https://prospect.org/article/justice-deported/.
[9] See Nowrasteh, Alex. Why E-Verify is failing, Politico (October 29, 2019), https://www.politico.com/news/agenda/2019/10/29/e-verify-immigration-060347.
[10] See Horton, Sarah and Angela Stuesse. Criminalizing Immigrants Hurts All Workers as IRCA Turns 30, Daily Kos (November 3, 2016), https://www.dailykos.com/stories/2016/11/3/1590562/-Criminalizing-Immigrants-Hurts-All-Workers-as-IRCA-Turns-30.
[11] See Phillips, Julia A. and Douglas S. Massey. The new labor market: Immigrants and wages after IRCA. Demography 36, 233-246 (1999).
[12] See U.S. Department of Labor, Employment Standards Administration.
ESA Press Release: Labor Department and INS Sign Memorandum of Understanding to Enhance Labor Standards Enforcement to Aid U.S. Workers [11/23/1998], https://www.dol.gov/newsroom/releases/esa/esa19981123-0.
[13] See Smith, Rebecca, National Employment Law Project, Ana Avendaño, AFL-CIO, and Julie Martínez Ortega, American Rights at Work Education Fund. ICED OUT: How Immigration Has Interfered with Workers' Rights (October 2009), https://www.jwj.org/wp-content/uploads/2013/12/icedout_report.pdf.
[14] See Bacon, David. Justice Deported, The American Prospect (December 14, 2006), https://prospect.org/article/justice-deported/.
[15] See Smith, Rebecca, National Employment Law Project, Ana Avendaño, AFL-CIO, and Julie Martínez Ortega, American Rights at Work Education Fund, ICED OUT: How Immigration Has Interfered with Workers' Rights, (October 2009), https://www.jwj.org/wp-content/uploads/2013/12/icedout_report.pdf.
[16] See Bobo. Kim Wage Theft in America: Why Millions of Working Americans Are Not Getting Paid-And What We Can Do About It, The New Press (September 2011).
[17] See Smith, Rebecca, National Employment Law Project, Ana Avendaño, AFL-CIO, and Julie Martínez Ortega, American Rights at Work Education Fund, ICED OUT: How Immigration Has Interfered with Workers' Rights, (October 2009), https://www.jwj.org/wp-content/uploads/2013/12/icedout_report.pdf.
[18] See McPhee, Mike. Largest workplace raid ever, The Denver Post (December 13, 2006), https://www.denverpost.com/2006/12/13/largest-workplace-raid-ever/.
[19] See Ortman, Chris. More on aftermath of December 2006 Swift raids, Working Immigrants (December 12, 2007), https://www.workingimmigrants.com/2007/12/more-on-aftermath-of-december-2006-swift-raids/.
[20] See McGhee, Tom. Swift sold to Brazilian Firm, The Denver Post (May 29, 2007), https://www.denverpost.com/2007/05/29/swift-sold-to-brazilian-firm-2/.
[21] See The Associated Press. JBS meatpacking plant in Greeley accused of negligence after COVID-19 outbreak, The Colorado Sun (October 8, 2020), https://coloradosun.com/2020/10/08/jbs-meatpacking-plant-coronavirus-negligence/.
[22] See Costa, Daniel. Immigration enforcement is funded at a much higher rate than labor standards enforcement—and the gap is widening, Economic Policy Institute (June 20, 2019), https://www.epi.org/blog/immigration-enforcement-is-funded-at-a-much-higher-rate-than-labor-standards-enforcement-and-the-gap-is-widening/.
[23] See Galemba, Rebecca. Opinion: When ICE fails to distinguish between the accused and the guilty, justice for all is hampered, The Colorado Sun (June 16, 2019), https://coloradosun.com/2019/06/16/immigration-criminal-justice-polis-ice-opinion/.
[24] See Bobo. Kim Wage Theft in America: Why Millions of Working Americans Are Not Getting Paid-And What We Can Do About It, The New Press (September 2011).
[25] See Weil, David. Enforcing Labour Standards in Fissured Workplaces: The US Experience, The Economic and Labor Relations Review 22(2), 33-54 (2011).
[26] See Bernhardt, Annette. The Role of Labor Market Regulation in Rebuilding Economic Opportunity in the United States. Work and Occupations 39(4), 354-375 (2012).
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