A new report released Tuesday by three labor and employment advocacy organizations claims that the Bush administration’s crackdown on illegal immigration, combined with lax enforcement of labor laws, undermined federal labor standards, leaving not only illegal immigrants but many legal workers at risk of abusive employment practices.
According to a recently released 2008 survey of more than 4,000 low-wage workers in New York, Los Angeles and Chicago, 26 percent of workers said they had not been paid the minimum wage in the previous workweek and 76 percent had not been paid overtime they were legally owed. The survey, conducted by the National Employment Law Project, showed that the emphasis on illegal immigration enforcement has increasingly undermined the government’s responsibility to enforce the labor laws that govern minimum wages and working conditions.
[buttons] During the Bush years, the Immigration and Customs Enforcement Agency has, for example, conducted high-profile workplace raids in low-wage industries looking for illegal workers during or shortly after a labor conflict. According to advocates, an employer, or employer’s agent, would call ICE during a labor conflict to scare employers away from supporting a union or protesting unpaid wages. ICE in some cases initiated an investigation and even arrested workers during the dispute, the new report documents, deterring workers from continuing to protest illegal condictions. Such actions violate a longstanding understanding between the immigration and labor authorities that immigration enforcement should not be used to undermine labor rights.
For example, in September 2008, an employer calling itself “Employers All Dry Water Damage Experts” recruited day laborers in New Orleans and transported them to Beaumont, Texas, where the workers claim, according to the report, that they were told to perform dangerous demolition work in an oil refinery. When the employer refused to pay the $13-an-hour rate he had promised and gave the worst assignments to non-white workers, the report documents, the immigrant workers protested. They say they were evicted from the refinery in the middle of the night without pay. Local police were waiting outside for them, accompanied by an ICE agent. Twelve of them were arrested and detained for more than 76 days. A New Orleans-based advocacy group, The Congress of Day Laborers, secured the release of eight of the workers, but according to their complaint filed with ICE, the agency still initiated deportation proceedings against them.
“I am currently fighting my own deportation because I stood up and demanded pay for the work I had done,” said Josue Diaz, one of the laborers, at 287(G) PROGRAM, despite evidence of its past abuse. The agency says it has improved oversight of local police actions.
“The prior administration seemed to have abandoned the policy of noninterference in labor disputes,” said Rebecca Smith, a lawyer for the National Employment Law Project and co-author of the report, in an interview yesterday. “Certainly the number of people reporting this practice has grown over the years. That’s what got our attention. In the past, we’d been able to say to all workers, you can complain about labor violations, you’re protected. Then we saw that that wasn’t always the case.”
According to the NELP survey, 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.
Labor complaints are not supposed to lead to retaliation against illegal immigrants. Since 1998 the Labor Department and immigration authorities have operated pursuant to a Memorandum of Understanding that they cooperate only in limited ways. Labor Department officials are not supposed to ask employees about their immigration status, for example, to keep from intimidating employees into not reporting labor law violations. The idea is also to ensure that American employers hire legal employees, because if illegal immigrants can’t enforce the labor laws, that creates a huge incentive for employers to hire them.
But the firewall that existed between the two agencies appears to be breaking down, the report shows.
At the same time, the labor department over the past eight years severely cut back its own enforcement of the labor laws. According to a GAO report issued last year, cited in the report released today, the Department of Labor’s Wage and Hour Division routinely failed to enforce the wage and hour laws, filing almost 40 percent fewer legal actions against employers than it did ten years earlier, and in many cases failing to properly investigate and respond to complaints filed by individual workers. Of ten complaints filed by undercover GAO investigators, GAO found that only one was successfully investigated.
A follow-up GAO report this past March found that the agency was still plagued with similar problems. Five of ten labor complaints filed by undercover agents weren’t eeven recorded in the Wage and Hour division’s database, and there were not investigated. In two cases, labor department officials recorded that employers had paid back wages, when, in fact, they had not. Found hundreds of cases mishandled and delayed. In one, for example, the division waited almost two years to investigate a complaint filed by restaurant workers.
Immigration prosecutions, on the other hand, have increased dramatically. As TWI reported in September, in June, immigration prosecutions were up 110 percent from 2004. The report released today by the AFL-CIO, American Rights at Work and the National Employment Law Project finds that immigration prosecutions rose to record levels between 2006 and 2008, at the same time as high profile raids at manufacturing plants across the country captured headlines. These immigration raids often took place during labor investigations. For example, in May 2008, the reports reveals, ICE agents arrested 389 workers in a food processing plant in Iowa while at least three other agencies were investigating serious labor violations.
Although ICE has long claimed that it focuses on employers that “egregiously violate immigration laws,” the data reveal that of 6,287 ICE arrests at workplaces in 2008, only 2.1 were of employers or employers’ agents. Usually they were of workers using either fake work authorization documents, or documents that belonged to someone else.
The report also criticizes the 287(g) program, which authorizes the federal government to deputize local law enforcement officials to enforce federal immigration law. The report finds that “the program has allowed more law enforcement officers to become inappropriately, even unwittingly, involved in labor disputes on the side of employers.” The problem, the report’s authors concluded, is that local police are not bound by the same restrictions that are supposed to govern ICE agents, such as not interfering in active labor disputes. “All those protections are lost when it comes to local and state police enforcing these laws,” said Ana Avendaño, a co-author of the report from the AFL-CIO, during a press conference this morning.
The Department of Labor, for its part, has acknowledged in recent months its previous failure to adequately enforce the wage and hour laws documented by the GAO report, and says it’s on its way to correcting the problem.
“Let me be clear, there is a new sheriff in town,” Department of Labor Secretary Hilda Solis said when she was sworn into office in mid-March. “We’ll accomplish this through tough enforcement, transparency, cooperation and balance.”
After the new GAO report in March revealed the ongoing problems in the agency, Solis quickly announced that she plans to hire 250 more wage and hour enforcement staff.
“As secretary of labor, I am committed to ensuring that every worker is paid at least the minimum wage, that those who work overtime are properly compensated, that child labor laws are strictly enforced and that every worker is provided a safe and healthful environment,” she said in late March.
This morning, Labor Department spokesman Joseph deWolk confirmed that 224 new investigators had been hired by October 13, and the rest should be on board by the end of the month.
Responding to the report, Matthew Chandler, spokesman for the Department of Homeland Security, said that DHS and ICE have changed their practices since the last administration. “In April, updated worksite enforcement guidance was distributed to Immigration and Customs Enforcement (ICE), which reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers,” Chandler said in an e-mail. “ICE focuses its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.”
Enforcement of the labor laws could still be stymied, however, by the fact that key individuals nominated to lead enforcement efforts in the agency still have not been confirmed by the Senate. That includes the Assistant Secretary for Occupational Health and Safety, or OSHA; the Wage and Hour Administrator; and the top lawyer for the agency, the Solicitor of Labor.
*Update: This story was changed after publication for clarity. *