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Pinkertons at DHS

Are Immigration Busts Undermining U.S. Labor Law?
...When immigration enforcement and worker protection come into conflict with each other, they make a mess. That’s because one usually comes at the expense of the other.
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In November 2005, hotel employees in the city of Emeryville, California got some good news. Local voters had passed a “living wage” law requiring hotels to pay workers a minimum of nine dollars per hour plus extra for certain duties. In an expensive town--Emeryville occupies a narrow peninsula in the San Francisco Bay, making it attractive to tourists--this was welcome news. As the months went by, however, employees at one hotel, the Woodfin Suites, found that they were still being paid less than the law required. In September 2006 they went before the city council to complain about it.

Then things got ugly. A few weeks after the city council meeting, managers at the Woodfin told employees that their Social Security numbers had generated “no-match” results--meaning that the numbers were probably fraudulent. The employees would have a month to fix the trouble or be dismissed. Since some of the employees had already been there for six years on flimsy paperwork, the sudden request seemed like revenge on the part of the hotel. Soon, the two sides went to court in a complicated case involving the interplay of back wages and immigration law.

As the fight worked its way through the legal system, however, something else was going on behind the scenes. Woodfin’s CEO, Samuel Hardage, decided to contact his congressman, Republican Brian Bilbray of San Diego, a noted immigration hawk, to ask for some help. Would Bilbray kindly intervene with U.S. Immigration and Customs Enforcement, aka ICE?

Bilbray, who had received campaign backing from Hardage, obliged. On February 21, 2007, the congressman sent a letter to the head of ICE, Julie Myers, asking her to investigate the legal status of employees of Woodfin and other businesses in Emeryville. Later that year, ICE followed up, questioning one of the fired Woodfin workers at home and arresting an employee at a neighboring Emeryville hotel. As ICE busts go, this one was mild. Still, if Hardage’s intention had been to send a warning to illegal immigrants everywhere about what happens to complainers, it had been effective.

The Woodfin case generated a minor stir in the Bay area, but the episode was typical of a common problem: when immigration enforcement and worker protection come into conflict with each other, they make a mess. That’s because one usually comes at the expense of the other.

Consider these examples: In Tar Heel, North Carolina, the United Food and Commercial Workers Union was trying to organize workers at a Smithfield Foods slaughterhouse. Then, in January 2007, the effort was effectively halted when ICE raided the plant and arrested twenty-one employees on suspicion of being illegal immigrants. In Portland, Oregon, Del Monte Fresh Foods had settled a case in 2006 with workers who alleged they’d been fired for raising safety concerns at a plant. In 2007, ICE busted the same plant and arrested over 150 people. In Queens, New York, Teamsters were organizing employees at a FreshDirect food plant. Then, last December, just weeks before the workers were due to vote on union representation, ICE announced that it would be conducting an immigration audit of the company, thereby scuttling the unionization effort.

In fact, there’s disturbing evidence to suggest that unscrupulous employers are leaning heavily on ICE to threaten their own employees. Some of the most damning statistics come from a 2004 report by Professor Michael Wishnie of Yale Law School. In a remarkable study of all workplace raids--184 in all--conducted by federal immigration enforcement in the New York City area over a thirty-month period, Wishnie found that over half were on workplaces officially embroiled in labor disputes. In theory, ICE isn’t supposed to brush up against labor enforcement. Its written policy is to avoid any role, even an inadvertent one, as union buster or company goon. This even extends to an agreement with the Department of Labor. In 1998, the Immigration and Nationalization Service (ICE’s predecessor) and the Employment Standards Administration penned a “memorandum of understanding” pledging that the two agencies would “develop and implement policies … that avoid inappropriate worksite interventions where it is known or reasonably suspected that a labor dispute is occurring.” But the communication doesn’t appear to be very strong these days.

No matter how you feel about illegal immigration, this is bad news for U.S. workers. Normally, when a factory breaks health and safety rules, the Occupational Safety and Health Administration finds out about the violations thanks to employee tips and subsequent interviews. Likewise, when a factory fails to pay minimum wage or overtime, inspectors from federal or state labor departments can normally depend on employee cooperation. If employees don’t answer questions honestly, or if they run away the moment inspectors enter a building, then investigations go nowhere. And if labor officials are unable to enforce wage and safety standards properly, then law-abiding companies and legal workers suffer too, placed at an unfair disadvantage to rogue competitors.

But the damage goes beyond that. Illegal employees who fear deportation are far easier to exploit than legal ones who don’t fear it. Owners can work illegal employees harder, subject them to more dangerous conditions, and pay them less money. So why not hire as many as possible? (To be sure, none of this would apply if employer sanctions for hiring illegal workers were heavy, but in reality they are light--and rarely imposed.) In this way, the so-called “job magnet,” the main driver of illegal immigration, remains as powerful as ever. Perversely, then, the occasional ICE bust can make illegal workers even more appealing to employers than legal immigrants or American citizens.

Unfortunately, while ICE is aware of such concerns, it doesn’t seem to be especially troubled by them. In the case of the Woodfin Hotel dispute, ICE released a statement saying, “The agency respects employees’ rights to a safe and fair workplace; however, if ICE has evidence of criminal activity, a labor dispute does not preclude us from conducting an investigation.” (Of course, since any case of illegal immigration is, strictly speaking, “criminal activity,” this amounts to no reassurance at all.) Some episodes have been even more harmful. In August of 2005, for instance, ICE was involved in a crackdown on subcontractors working at Seymour Johnson Air Force Base in Goldsboro, North Carolina. Employees there had been instructed to show up for mandatory safety session to be conducted by OSHA. Upon arriving at the appointed hour, however, the workers discovered that the OSHA instructors were in fact ICE agents in disguise and that the purpose of the gathering was an immigration bust. OSHA officials were horrified to think that their efforts to improve workplace safety might be viewed from now on as a front for immigration busts. So great was the resulting outcry that ICE officials vowed “new procedures to ensure that appropriate coordination is completed before future operations.” 

Unfortunately, many foes of illegal immigration, especially those on the right, are reluctant to discourage ICE in any way. But they should think again. Done wrong, crackdowns do nothing but help bad employers. (After all, if lousy workplace conditions in the host country were a major deterrent to workers looking outside their native countries for employment, then Saudi Arabia, known to treat its foreign workers brutally, would lack a labor force.) Courts have, at times, been equally blind to the unintended consequences of loose-cannon immigration enforcement. In 2002, the U.S. Supreme Court ruled in a five to four decision that a former employee of a company called Hoffman Plastics was not entitled to back pay because he had been in the country illegally. This was not a helpful decision. As Justice Stephen Breyer explained in his dissent, the majority ruling would have the effect of “encouraging [employers] to take risks, i.e., to hire with a wink and a nod those potentially unlawful aliens whose unlawful employment (given the Court’s views) ultimately will lower the costs of labor law violations.”

None of this is to say that ICE should cease all immigration enforcement. If we are to have controlled immigration in the United States, we must be prepared to live with its uncomfortable concomitant: the exclusion of those without permission to be here. With scarce resources, however, priorities have to make sense. Today, thousands of people cycle through our local criminal justice systems or are placed under arrest without being screened for their immigration status. As long as that’s the case, how can ICE justify workplace busts--especially ones that step into labor disputes? Likewise, thousands of employers knowingly hire illegal immigrants and those few who get caught get off lightly for it. If employer punishment is mild, how does that discourage hiring illegal immigrants?

Partly to address such questions, ICE has vowed to get tough on employers. Still, when I contacted the agency to request data on all the raids conducted so far--and specifically on what sort of punishments had been meted out to employers-- I was told that complete records were unavailable. Instead, I was referred to a few press releases about selected raids in which some especially shady employers had been arrested. So it comes down to trust in ICE. In a presidential administration not known for its planning or competence, you must have faith that ICE has surveyed the big picture and devised a thoughtful, comprehensive strategy of enforcement. With GOP donors in mind, you must have faith that the Bush administration is genuinely getting tough on employers, not just employees. And, at a time when worker protections have steadily eroded, you must have faith that ICE is taking care never to step into workplace disputes and undermine labor standards as it picks its targets. Well, then: are you feeling faithful?