Legal Dissonance: Immigration Policies Clash with Worker Protections

Meanwhile in Los Angeles, a federal crackdown is set to push about 1,800 American Apparel workers out of the job, not because their employers mistreated them — they were paid decent wages and benefits, well above what many immigrants in the area could hope for — but because they didn’t have the right papers.

These stories form a disjointed picture of federal law enforcement, but they’re rooted in one policy regime. The AFL-CIO, National Employment Law Project and American Rights at Work argue in a new report that incoherent federal policies are not only degrading immigrants but threatening the rights of all workers.

According to the report, restrictions on illegal hiring, rather than disciplining employers, give bosses dangerous leverage over workers and organizers:

One of the most devastating illegal employer tactics is the threat to call immigration authorities on workers. The chilling impact of employers’ unlawful threats is felt not only by undocumented workers, but by their co-workers.

Documented workers and U.S. citizens may be reluctant to organize their workplaces because properly timed threats to turn workers over to immigration authorities can undermine the union election process. And if workers should win a union election, deportation of their undocumented co-workers will dilute the power of the bargaining unit.

This disempowerment cut deeply into low-wage job sectors where immigrants are concentrated. According to a survey of workers in Los Angeles, Chicago and New York City, ​“43 percent of workers who made a complaint to their employer or attempted to form a union experienced one or more forms of illegal retaliation, including threats to call immigration authorities.”

Workplace raids, in theory, should apprehend unscrupulous employers. But due to a combination of Arpaio-style xenophobia and Washington’s political myopia, raids have become showcases for state-sanctioned profiling and bigotry, while bosses emerge relatively unscathed:

ICE made 6,287 (5,184 administrative, 1,103 criminal) arrests for immigration offenses at workplaces in 2008. Only a small fraction of its arrests (2.1 percent) were of employers or employers’ agents. More frequently, the criminal arrests were of workers for using work authorization documents that did not belong to them – a common means of gaining access to work.

The case of day laborers in Beaumont, Texas, hired to work on hurricane recovery in 2008, reveals the collusion between law enforcement and labor abuse:

According to the Congress of Day Laborers, the employer failed to pay the promised hourly wage rate of $13 and failed to keep its promises regarding the work hours and schedule. The employer gave preferential treatment to the white workers who formed a part of the crew, including providing them with safer conditions and easier assignments.

When the immigrant workers complained of their working conditions, they were evicted from the refinery in the middle of the night without pay. The employer had already contacted the Port Arthur, Texas Police, who were waiting outside the refinery, accompanied by an ICE agent.

From a human rights perspective, the National Network for Immigrant and Refugee Rights sees an ​“immigration control regime” that systematically disenfranchises communities of color. In an analysis of Homeland Security’s enforcement tactics, the group says, ​“ICE enforcement operations and raids are used as a deliberate tool and strategy to intimidate and destabilize communities and often leave local and regional economies in shambles.”

It’s not impossible to harmonize labor law and immigration policy, if the government only had the will to mobilize both to protect, rather than alienate workers. ICE could, for example, commit to ​“non-interference” with labor enforcement activity and avoid workplace disputes; Washington could ensure that the Labor Department has adequate resources for enforcing wage laws. And of course, Congress could start dismantling apartheid in the workforce by giving the undocumented a humane path to legal status.

The Obama administration has promised reforms, but has so far largely maintained Bush-era patterns of crackdowns, detention and deportation.

While current immigration policy defies logic, it is politically rational: It’s risky to confront the structural causes of the abuses, far easier just to erase the victims by deporting them. It’s easier to root out underground laborers than to trace the real responsibility for the crisis, beyond the desperate migrant, beyond even the crooked employer — it’s woven deep into the fiber of the economy, hemmed in tightly by the force of law.