Using Immigration law to protect wage-thieves

In America employers use immigration laws against workers who speak out. Under George W. Bush, ICE raids often coincided with union campaigns—such as the 2008 raid at Agriprocessors, a meatpacking plant in Postville, Iowa that the United Food and Commercial Workers was trying to organize, where 389 people were arrested and 270 jailed for using Social Security numbers that weren't their own. Under Obama what it has preferred called "silent raids" or "desktop raids." It has quadrupled the number of audits of workplaces' I-9 as businesses are required to fire employees who can't prove they're legally allowed to work. "Employment eligibility verification" forms, to about 2,000 a year, according to a 2013 report by the National Employment Law Project (NELP). "It's very convenient for employers," says an immigration specialist at one national union "An I-9 audit gets rid of the complainers. It's really damaging when you have organizing going on."

"The buildup of immigration enforcement provides unscrupulous employers with additional tools to retaliate against immigrant workers who seek to exercise their rights," the NELP report said. More than 2 million undocumented immigrants were deported in Barack Obama's first five years in office—more than in the Bush administration's full eight—and employers are still finding ways to use immigration laws against workers complaining about conditions or trying to organize unions.

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 When workers at Mi Pueblo Food Center, a Northern California supermarket chain, began picketing and leafleting in 2012, the stores "all of a sudden" volunteered to use ICE's E-Verify database to check workers' Social Security numbers, even though it had never enrolled before.  I-9 forms are supposed to be checked only for new hires, "not for people who've been here five-six-seven-eight years," says Pete Maturino, president of United Latinos of UFCW and head of Local 5's agricultural division. The result at Mi Pueblo, where the owner "would only hire people who are undocumented because they won't speak up," was that about 750 workers, 70 percent of the stores' staff, were terminated.

Nelson Motto, an organizer with the National Guestworker Alliance in New Orleans explained "The biggest challenge is that it's extremely difficult to get ICE to admit that they were tipped off by the employer." In one case, when construction workers in Washington, DC, were trying to form a union, the house where some of them were staying was raided. "We haven't been able to prove that the employer tipped ICE, but if you ask the workers, they're 100 percent sure."

Workers have some protection, says Mike Henneberry of UFCW Local 5 in California,  from a 1998 memorandum of understanding between the Department of Homeland Security and the Department of Labor that ICE will hold off on raids if there's a union-organizing campaign underway. Last year, says Motto, Jamaican guest workers cleaning hotels in Panama City and Dustin, Florida were able to use this to wage a strike when their employer threatened to deport them after they complained about not getting enough hours and receiving paychecks for $0. The key tactic, he explains, was immediately notifying ICE that there was a labor dispute going on and getting the agency to issue a written neutrality agreement. "That provided the workers a bit of relief," he says. However, the 1998 memorandum of understanding with the Department of Labor suspends ICE enforcement at a workplace only while there is a federal investigation of workers' wage and hour or health and safety complaints, the NELP report notes. It does not suspend it during state investigations of wage theft or safety violations, or protect workers who make claims about discrimination or for workers' compensation—and it "explicitly allows ICE to resume or begin an audit after the Department of Labor investigation concludes."

Employers who pay cash, who classify workers as independent contractors to escape wage and safety regulations, or are franchises technically not connected to the brand-name corporation, are harder to track. These employers are more likely to initiate audits on their own, and their workers have fewer protections when they try to organize or make complaints. "If we have any kind of smoking gun that the employer did that, we can go after them," he says, but if not, they can't prove anything—although in one case, an employer left a voicemail message telling the union, "I'm going to have to call ICE if you don't back down."

Immigrant construction workers are particularly vulnerable, says Cliff Smith of the Roofers, because their work is intermittent, temporary or day labor. He calls Los Angeles "the wage-theft capital of the country." In 2012, according to the NELP report, two Brazilian construction workers from Massachusetts were deported after they tried to collect $6,500 a subcontractor owed them for a summer's work installing plaster and sheetrock in Boston. When they went to the subcontractor's home in the New Hampshire suburbs, he called police, who stopped them and turned them over to ICE.

Simply exploiting fear can discourage workers from speaking out. "You only have to call ICE a couple times, and then everyone knows it's a possibility," says Nicky Coolberth of the UFCW.

In agriculture and related industries, where about 70 percent of workers are undocumented, the anti-union consultants employers hire can be "pretty subtle," says Pete Maturino. In formal unionization campaigns, he explains, organizers are allowed to visit workers at home, so employers give their names and addresses to the National Labor Relations Board, which passes them on to the union. The consultants will apologize to the worker for that, saying, "I had to give your name and address to the federal government, and I know your situation."

At an onion-processing plant in Firebaugh, California, he says, consultants told workers in one-on-one meetings "you have to be documented to be a member of the union." At the Apio salad-processing plant in Guadalupe on the Central Coast, the consultants told workers that "union membership requires you to be documented, so a lot of you are going to lose your jobs." In fact, the union is required to represent members no matter what their status.

Last February, after 19 workers at Alameda County Industries, a garbage-recycling company in San Leandro, California, signed a letter announcing that they were going to sue for being paid almost $6 an hour less than the city's $14.17 "living wage," 18 of them were fired on the grounds that an ICE audit a year before had revealed they were undocumented. The news of the audit provoked a strike, and in October, workers at the facility voted overwhelmingly to join Local 6 of the International Longshore Workers Union.

"A lot of times, undocumented workers are our strongest supporters, because they've been through so much and they won't take any crap," says Henneberry.

The Supreme Court's 2002 decision in Hoffman Plastic Compounds v. NLRB, in which a 5-4 majority held that a Mexican immigrant illegally fired for being a union supporter had no right to get back pay or his job back, because he was "never lawfully entitled to be present or employed in the United States."

That decision, says Smith, "unleashed this whole wave" of employers claiming that undocumented immigrants were not entitled to back pay, workers' compensation, or freedom from racial or gender discrimination. Lower-court rulings have moderated that somewhat since then, she adds, as "there is no credible argument that unauthorized workers aren't entitled to their basic wage for work—a contrary view would condemn them to slavery."

In 2011, when a Colorado restaurant worker sued his former employer for wage theft, a federal court ruled that the employer's attempts to find out his immigration status were "an improper attempt to harass and intimidate Plaintiff."

In 2011, a federal judge in Washington state ordered apple-orchard workers suing their employer for sexual harassment to reveal their immigration status, saying that the women's emotional distress might have been caused by being undocumented and not from having had a foreman stick his hand down their pants. In a class-action suit about wage theft in California last year, the judge said undocumented workers could not be among the named plaintiffs representing the class of unpaid workers.

Giving workers some kind of assurance that they won't be deported doesn't mean retaliation will stop, says Nelson Motto of the Guestworkers Alliance. The Obama plan might even make things worse for those who don't qualify, by pushing them deeper into the underground economy. The AFL-CIO stated "Providing protection to undocumented individuals who assert their workplace and civil rights protects all workers," it says, and "allowing them to be detained or deported for such activity has a dangerous chilling effect on activity to enforce workplace standards."

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