Immigration Law - Bringing Back Sweatshop Conditions
by David Bacon
BERKELEY, CA (11/10/98) -- There is an immigration crisis in the U.S. But it is not one caused by uncontrolled borders or too many immigrants, the stereotyped images used to inflame anti-immigrant hysteria. It is a sweatshop crisis -- the return to exploitative conditions in the workplace reminiscent of a century ago. And the enforcement of U.S. immigration law has become a key weapon in the proliferation of those conditions, undermining the ability of immigrant workers to fight for better pay and treatment, and the effectiveness of unions which try to help them.
The slide backwards got a big push with the passage of the Immigration Reform and Control Act of 1986, which made employer sanctions part of federal law. The law was a watershed in the status of immigrants in the U.S., and formalized the creation of a special category of residents who have significantly fewer rights than the population as a whole -- who cannot legally work or receive social benefits.
Employer sanctions has had a strong economic impact -- decreasing the wages of undocumented labor and increasing profit rates in industries dependent on it. Undocumented workers are a permanent and constant part of the U.S. population, and have been for decades. According to the Urban Institute, it has fluctuated from 2.5-3.5 million in 1980, to 3-5 million in 1986, to 1.8-3 million in 1988, and to 2.7-3.7 million in 1992.
It is clear that the undocumented population is relatively stable -- about 1 percent of the total population.
The National Immigration Forum calculates that undocumented immigrants pay about $7 billion annually in taxes, subsidizing funds like Social Security and unemployment insurance from which they cannot collect benefits. In California, which accounts for about 43 percent of the nation's undocumented population, or about 1.4 million people, undocumented immigrants pay an additional $732 million in state and local taxes.
A UCLA study found that undocumented workers contribute approximately 7 percent of California's $900 billion gross economic product, or $63 billion. The contribution by each undocumented immigrant is therefore about $45,000, counting even children, the unemployed, and those too old or ill to work. Almost all undocumented workers receive wages near, and sometimes below, the legal minimum, which at $5.75 per hour equals an annual income of $11,960.
The labor of undocumented workers pumps tens of billions of dollars into the state's economy, but the workers themselves receive only a small percentage of it. That difference is a source of extra profit for those industries dependent on a workforce made up largely of undocumented workers -- agriculture and food processing, land development (including the residential construction and building services industries), tourism (including the hotel and restaurant industries), garment production and light manufacturing, transportation, retail trade, healthcare and domestic services.
When that workforce is made more vulnerable by immigration legislation, it also becomes cheaper for employers.
Nevertheless, undocumented workers have not been passive victims of exploitation. Over the last decade, they have been the backbone of many strikes and organizing drives. Employers have used their vulnerability, however, in an effort to stop growing support for unions.
A report issued in October on the impact of immigration raids by the National INS Raids Task Force of the National Network for Immigrant and Refugee Rights, Portrait of Injustice, details a number of cases in which immigration enforcement has been used to deny immigrants their workplace rights. In just one of many examples, during the current joint organizing drive by the Teamsters Union and the United Farm Workers in Washington state's apple industry, the Stemilt Fruit Company told workers that union support would bring on raids. According to one employee, Mary Mendez, Stemilt's anti-union consultant told workers that "there hasn't been a union here yet, and the INS hasn't done any raids. But with a union, the INS is going to be around."
Using those threats, the company was able to defeat the union in a representation election. Afterwards, however, the NLRB issued a bargaining order because of Stemilt's illegal actions.
Employer sanctions set up a process in which employers are required to request documents from workers to verify their legal right to reside in the U.S., and record those documents on I-9 forms. Since IRCA passed in 1986, many employers have used the I-9 process as a mechanism for firing pro-union workers.
In 1990, Shine Building Maintenance in Silicon Valley was faced by an organizing drive by its immigrant janitors. The company told its workers they had to provide new documentation verifying their legal status. When workers couldn't produce it, they were terminated. The I-9 check provided a way to eliminate a pro-union workforce, without violating NLRB prohibitions against terminations for union activity.
In San Leandro in 1997, Mediacopy, a video reproduction company, used threats to verify workers' immigration status as a means to terrorize them before a union election, and to reduce the number of eligible voters. In December of 1996, immigration agents went through the company's I-9 forms to find the names of undocumented workers. A major raid followed in January, in which 99 people were deported.
Workers nevertheless signed union cards at the plant, and filed for an NLRB election. A month before the voting, the company announced it had received an INS request for the reverification of the documents of another 166 people. Many workers then simply disappeared. Those who remained were convinced that another raid was imminent. The union lost the election, and the NLRB again sought a bargaining order to compensate for the extensive illegalities.
This spring in San Leandro again, workers sorting recycled trash for Waste Management, Inc., organized a wildcat work stoppage over safety issues, occupying the company's lunchroom. Three weeks later, the INS showed up, audited WMI's I-9 forms for those workers, and eventually deported eight of them.
The ability of an employer to inform on its own workforce, and use the INS to remove pro-union workers, received legal reinforcement last year in the Montero case in New York State.
In 1992, workers at STC Knitting in Long Island City, New York, began an organizing drive with the International Ladies' Garment Workers Union (now UNITE). Just before the representation election, the company's attorney wrote to the INS telling the agency that undocumented workers were employed in the sweatshop. The INS conducted an I-9 check, and arrested ten workers, including Gloria Montero, an active member of the union committee. When she appealed the way in which immigration enforcement was used as a tool by the employer to terrorize workers and remove union supporters, a federal court ruled that it was a legal application of employer sanctions.
Even in the absence of direct union organizing, the pressure of immigration raids keeps wages low among some of the most vulnerable sections of the workforce. In the San Francisco Bay Area, such raids have focused on fast food workers, car wash workers, and day laborers seeking jobs on the street corner. Enforcing low wages among these workers undermines wages generally in the service, fast food and construction industries.
The enforcement of employer sanctions has also undermined the ability of workers to protest the violation of fair labor standards. In 1992 the INS signed a memorandum of understanding (the MOU) with the Department of Labor. It requires DoL inspectors to verify I-9 forms when they are called in by workers over unpaid overtime and other wage and hour violations.
In Los Angeles the INS initiated a series of raids in garment sweatshops, called Operation Buttonhole, in response to information from DoL inspectors. In one raid, on P.K. Fashions, garment worker Miguel Angel Garcia Serrano was so frightened he jumped out of an eight-story window. "Workers in the garment industry won't complain about workplace violations if it gets out that the DoL and the INS are working together," says UNITE organizer Cristina Vasquez. "Manufacturers and contractors will use it to scare and threaten workers." A DoL survey released this summer shows that less than 40% of the licensed garment factories in Southern California are in compliance with labor and employment laws.
Similar raids also followed a 1998 campaign by the Korean Immigrant Workers Association to enforce wage and hour laws in restaurants in LA's Korean community. Just weeks after DoL inspectors were called in over wage and hour violations, the INS began a wave of I-9 checks and deportations.
At a Staten Island laundry plant, Launderall, employees earning $300 for a 72-80 hour week called in DoL inspectors this fall. After workers made a claim for $159,000 in back wages, the INS conducted a raid.
In September, the Yale Law School Workers Rights Project and the American Civil Liberties Union filed charges under NAFTA's labor sideagreement against the DoL/INS memorandum of understanding. Federal law, upheld by the Supreme Court, establishes mandatory minimum wage and overtime protections for all workers, regardless of immigration status. "The Clinton policy amounts to a gag order on immigrant workers," explained Shayne Stevenson, student director of the Yale group. "If no one can complain about slave wages, sweatshop owners have a green light to ignore minimum wage and overtime laws."
At the same time that the Clinton administration's enforcement of employer sanctions actually encourages sweatshop owners, the INS has been given great latitude to cooperate with employers in enforcement.
This spring in Georgia, the local district director suspended raids entirely at the request of onion growers until their crop had been harvested. A new INS program will help meatpackers even more. In Nebraska and Iowa, the INS will inspect the employment records of every worker in every meatpacking plant, not to enforce legal wages or conditions, but to organize massive raids and deportations. Wages in meatpacking plunged when the packinghouse union master contract was torn apart in bitter strikes in the early 90s, leaving Iowa Beef Processors, with only 14 of its 41 plants unionized, on top of the industry. Thousands of immigrants were hired into low-wage jobs in the slaughterhouses. Now the INS is cooperating with IBP in a program called Basic Pilot, assisting it in bringing workers up from Mexico. Meanwhile, a constant threat of raids in the plants discourages workers from organizing.
In addition to opening up the prospect of deportation, employer sanctions also increase the risk for union activity in other ways. An undocumented worker considering whether to organize a union has to take into account the possibility of being fired, as do other workers. But sanctions make finding another job harder and riskier. The period of unemployment is likely to be longer.
Because sanctions also disqualify a fired worker from unemployment benefits, food stamps or other sources of income, a fired worker is forced to take whatever job is available, at whatever wage. And under National Labor Relations Board rulings, if an employer shows that a worker fired for union activity is undocumented, it is not obligated to rehire her or him.
When it becomes harder and riskier for workers to make demands for social services, or to assert their rights at work or in the community, the price of their labor drops. Immigrant wages are already depressed, and getting worse. According to UCLA professor Goetz Wolff, in women's apparel in Los Angeles, the average hourly wage fell from $6.37 to $5.62 between 1988 and 1993. Some 120,000 people work in LA's garment sweatshops, almost all immigrants, mostly undocumented.
Despite these obstacles, immigrant workers, including the undocumented, have been the backbone of labor's resurgence in California, in a multitude of strikes and organizing drives. Often, those union efforts have involved unique tactics to deal with the problem of immigration status.
In the yearlong strike by southern California drywallers in 1992, mostly-Mexican immigrants were able to stop all home construction from the Mexican border north to Santa Barbara. They defied the police and the Border Patrol, blockading freeways when their car caravans were rousted as they traveled to construction sites.
Mass mobilizations and militant tactics also marked the campaigns by Justice for Janitors in Century City, Silicon Valley and Sacramento. In smaller local struggles, unions like Warehouse Local 6 of the International Longshore and Warehouse Union have established a presence in the immigrant community through the use of strikes and direct action, and a willingness to take on the problem of immigration.
The history of the union struggles of immigrant workers in California is by-and-large a history of success. According to veteran union organizer Joel Ochoa, "the immigrant community is looking for ties with labor. People are coming here from Mexico and all over Latin America, with a tradition and culture that gives them a rich repertoire of tactics for fighting the companies."
Many California unions have realized that they will grow, and become more effective, as immigrant workers organize and contribute their traditions to the broader labor movement. Increasingly they are calling for an end to the use of immigration law as a weapon of employers. Repealing employer sanctions is a position now shared by the Service Employees International Union, the Union of Needletrades, Industrial and Technical Employees, the United Electrical Workers and the California Labor Federation, AFL-CIO.
Speaking before the Asian-Pacific American Labor Alliance in San Francisco last year, AFL-CIO Secretary Treasurer Richard Trumka reminded delegates that "we are all agitators -- we are all illegals. No matter how many years we've been here, in the eyes of the bankers of Wall St. we're all immigrants from Europe or Central America or Mexico, on our knees, digging in the dirt."
Winning justice for immigrant workers, ending sweatshop conditions and defending the right of unions to organize requires translating those sentiments into concrete political opposition to employer sanctions, and the use of immigration law to deny workers' rights.
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