Features » March 23, 2011
Fired for the Crime of Working
Not much has changed for undocumented workers since Obama took office.
Despite the Obama administration's claim that it is penalizing employers, the companies audited by ICE get immunity from penalties if they cooperate in firing their workers.
America’s Mexican workers are an often invisible but indispensable workforce. They clean office buildings at night, pick fruit and vegetables miles from most urban Americans, and cut up cows and pigs in giant factories in small Midwestern towns.
And they help staff the country’s 1,084 Chipotle Mexican Grill fast-food restaurants.
In December, Chipotle fired at least 450 workers across Minnesota, more than one-third of its workforce in the state. Their crime was that they worked, but had no immigration papers. That put them in the crosshairs of the Obama administration.
One of the fired workers was Alejandro Juàrez, who spent five years at the Lake Calhoun Chipotle in Minneapolis. Juàrez came here nine years ago, leaving two daughters and a wife at home in Mexico. Once he arrived, he could never risk going back, not even once, to see them grow up. Crossing back over the border to return to work would have cost more than $2,500, a prohibitive expense for a fast food worker. Over the years, Juàrez learned how to fix stoves, grills, refrigerators and hot tables, for which he was paid $9.42 per hour. He worked hard, sent money home, put his girls through school, and knew their voices only from the telephone.
Last December, he and co-workers all over the state were called in by managers. Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS), had audited company records, they said, and told Chipotle to fire them. So managers told them not to come back the next day.
Same strategy, different tactic
Forcing companies to fire undocumented workers is the Obama administration’s primary strategy for enforcing immigration law in the workplace. Since 1986, federal law has required employers to verify the immigration status of workers. Job applicants fill out an I-9 form and provide identification showing they are citizens or are immigrants authorized to work in the United States. In effect, this provision of the law, called employer sanctions, makes it a crime for an undocumented immigrant to work.
For more than 20 years, the federal government has used various methods to enforce the law. Under President George W. Bush, black-clad immigration agents holding submachine guns charged into meatpacking plants and rounded up workers for deportation. Bush proposed a regulation that would have required all employers to fire all workers whose Social Security numbers didn’t match the government’s database, presumably because they were undocumented. That regulation was challenged by unions and enjoined in federal court in 2007.
President Barack Obama and Department of Homeland Security Secretary Janet Napolitano have said they favor a less harsh strategy. ICE now audits the records of employers one by one. Obama says ICE targets employers “who are using illegal workers in order to drive down wages–and oftentimes mistreat those workers.” An ICE Worksite Enforcement Advisory claims “unscrupulous employers are likely to pay illegal workers substandard wages or force them to endure intolerable working conditions.” Curing intolerable conditions by firing workers who endure them, however, doesn’t help the workers or change the conditions.
Over the last two years, thousands of workers have been fired across the country following ICE audits. In Minneapolis, Seattle and San Francisco, more than 1,800 janitors, all members of SEIU union locals, have lost their jobs. In 2009, more than 2,000 American Apparel workers were fired in Los Angeles. No one, except perhaps ICE officials, knows exactly how many more workers have been terminated, but ICE director John Morton last year said the agency had audited more than 2,900 companies since Obama took office. In addition to forcing the firings of thousands, in fiscal year 2010 the administration deported more than 400,000 people and detained many thousands more.
Despite the Obama administration’s claim that it’s penalizing those low-wage employers, the companies audited by ICE get immunity from penalties if they cooperate in firing their workers. In other words, the Obama and Bush administrations’ immigration enforcement strategies are fundamentally the same: They punish workers, not employers.
One might think that the current and previous administrations, bent on forcing undocumented immigrants to leave the country, would also address the reasons why people cross the border to begin with. The North American Free Trade Agreement (NAFTA), for instance, allowed huge U.S. corporations from Archer Daniels Midland to Smithfield to flood Mexico with subsidized corn and meat, making it impossible for farmers to compete and survive. At least 6 million Mexicans, many of whom are former farmers, have come to the United States since the treaty took effect in 1994.
“Utilizing employer sanctions to address Mexican migration causes misery for workers, but does not reduce…the flow of people,” says Bill Ong Hing, a law professor who investigated meatpacking raids for the United Food and Commercial Workers union.
Yet despite campaign promises, the administration has no intention to renegotiate that treaty. In January, Obama appointed William Daley, who shepherded NAFTA through Congress for President Bill Clinton, as his chief of staff.
A fight for dignity
If the administration could somehow force millions of undocumented workers to leave, the economic consequences would be disastrous, as the basic workforce would disappear in many industries. Bush’s Secretary of Homeland Security, Michael Chertoff, explained this apparent contradiction in policy by saying the purpose of enforcement was to “close the back door and open the front door.” The meaning of this became clear when ICE agents did an I-9 audit last year at Gebbers Farms, an apple grower in remote eastern Washington. At ICE’s insistence, Gebbers fired 500 workers, some of whom had worked at the ranch for years.
After the firings, Gebbers applied for 1,200 H2-A visas, allowing it to import workers from other countries (including 300 from Jamaica) to pick its crops. The visa is tied to work, and “guest workers” must leave once the work is done.
Enforcement didn’t do away with immigrant labor, but allowed an employer to bring workers under conditions called “close to slavery” in a March 2007 report by the Southern Poverty Law Center. People coming as contract labor never become citizens, vote or hold power. They are routinely overcharged for food, tools and housing, and cheated on their pay. If they protest, they’re put on a blacklist. When contract or guest workers are fired, they lose both their jobs and their ability to stay in the country. That effectively gives the employer the power to deport them, making guest workers desperate and vulnerable.
The use of these programs is expanding; all the comprehensive immigration reform bills in Congress over the last five years have tied enforcement to these labor supply schemes.
“Instead of turning people into guest workers while firing and even jailing those who don’t have papers,” says Renee Saucedo, former director of San Francisco’s Day Labor Program, “we need to help people get legal status and repeal the laws that make work a crime.” Saucedo and a group of unions and immigrant rights organizations have proposed an alternative immigration policy based on human and labor rights, called the Dignity Campaign, which also aims to change U.S. trade policy.
In Minneapolis, SEIU Local 26 has helped workers caught in the audits to organize protest marches and demonstrations. When the Chipotle workers were fired, the union cooperated with the Center of Workers United in Struggle, a local workers’ center, and the Minnesota Immigrant Rights Action Committee to fight for back wages and vacation pay.
The terminated Chipotle workers have also demanded that the company support immigration reform. Chipotle might actually like proposals that would give it access to guest worker programs. But after getting fired themselves, that’s undoubtedly not what its workers have in mind. Any real reform must stop punishing workers and families for simply trying to survive, and instead end the unjust economic and trade policies that force people to migrate in the first place.
David Bacon is a writer, photographer and former union organizer. He is the author of The Right to Stay Home: How US Policy Drives Mexican Migration (2013), Illegal People: How Globalization Creates Migration and Criminalizes Immigrants (2008), Communities Without Borders (2006), and The Children of NAFTA: Labor Wars on the US/Mexico Border (2004). His website is at dbacon.igc.org.