By Rebecca Smith, Staff Attorney & West Coast Coordinator, National Employment Law Project
By now, it goes without saying that the Obama Administration inherited a set of failed immigration enforcement policies and a broken immigration system. In the past several years, newspapers have carried horror stories about workplace raids carried out by immigration agents, in which immigrants arrested for the crime of working without papers have been paraded through court and summarily deported.
Much less ink has been devoted to the ways in which these raids undermined both their specific objective of ensuring compliance with immigration laws, and the equally important goal of enforcing workers' labor rights. Drawing from reported cases, this week the AFL-CIO, American Rights at Work and the National Employment Law Project released a report detailing how, in case after case, employers were able to use the immigration status of their workers as a bludgeon to avoid labor claims.
Here's an example of how it works: An immigrant worker is injured on the job. He files a workers compensation claim - a perfectly legal action. His employer or insurance company then investigates and discovers his social security number isn't good. The worker is turned in to the Immigration and Customs Enforcement (ICE) agency, and deported. No workers compensation benefits for the worker. No workers compensation bill for the employer.
In this case, what is the employer likely to do next time a worker is injured? Who is the employer likely to hire to fill the job? How can that worker expect to be treated? Can his or her co-workers expect to be provided with a safe workplace?
We researched cases where just this scenario occurred. In one, the local US Attorney applauded the employer for calling the feds on an injured worker. Employers or their surrogates turned their own employees over to police or immigration authorities, and those authorities responded. In one instance, Jose Diaz, a day laborer, spent 78 days in jail for the "crime" of asking for $250 in unpaid wages.
We found cases where ICE used evidence of severe labor abuse, not as a signal that it should stay away and let state and federal labor agencies do their job, but that it should raid the employer. This myopic focus on deporting immigrants meant that in the now-famous Agriprocessors raid of 2008, for example, where the ICE search warrant application recounts stories of a worker's eyes being duct-taped shut and a worker being hit with a meat hook, ICE did not ensure that a single worker was interviewed as a potential victim of crimes. Such an interview would have established workers' entitlement to visas that would help labor agencies make a case against the employer.
In the U.S., most labor laws protect all employees, no matter what their immigration status. This policy makes sense - a stratified system that protects only some workers means a race to the bottom that affects all workers. In America, victims of certain crimes, including certain egregious, but not uncommon labor abuses, are entitled to remain in the country under special visas. But as the case studies we described showed, in many cases, the left hand was arresting immigrants with little or no regard to what the right hand was doing to investigate labor violations.
Now is the time for the Obama Administration to correct the failed immigration policies of the past. Fortunately, the Administration does not have to start from scratch. In the late 1990's just such policies were in place at both the Immigration Service and at the Department of Labor. The Administration can simply breathe life back into these old policies and update them. The Administration needs to bring the US Departments of Labor, the National Labor Relations Board, the Equal Employment Opportunities Commission, the Department of Homeland Security and the Department of State together. It needs to learn from the experiences and wisdom of groups on the ground who have lived through the era of "enforcement-only." Now is the time to recalibrate the balance between these two policies. Not only immigrant workers, but all those who work for a living, depend on it.