Employer Sanctions

David Bacon

From the
introduction of the original Simpson-Mazzoli Bill in the mid-1970s, the key
provisions of U.S. anti-immigrant legislation have been directed at
undocumented immigrants. At their heart are employer sanctions, which finally
became Federal law as a result of the Immigration Reform and Control Act of
1986. The law requires employers to keep records of workers’ immigration
status and imposes fines (low and rarely collected) on those who hire the
undocumented. The real impact of the law is on workers, making it a crime for
those without documents to hold a job.

This watershed
action codified the creation of a special category of residents of the United
States who have significantly fewer rights than the population as a whole, who
cannot legally work or receive social benefits.

The creation of
this special category has had widespread ramifications. It has influenced the
wage levels and vulnerability of immigrant labor. It has spawned other
proposals for the denial of rights, such as the right to education or medical
care. The original premise that undocumented immigrants have no right to work
or earn a living has been broadened to include the denial of rights to most
other basic elements of normal life, including the right to be a part of a
community. It has led to the demonizing and dehumanizing of undocumented
immigrants in public debate and political life. In the years that followed the
passage of the Immigration Reform and Control Act, dozens of anti-immigrant
bills were introduced, first into the California state legislature, and then
into legislatures in other states. In 1994, California voters passed
Proposition 187, an extreme measure to disqualify undocumented immigrants from
education and health care services. Again other states took up similar

In the spring
of 1996 Congress debated and passed some of the most extensive and repressive
immigration legislation in its history. Predictably, what started as an attack
against the most vulnerable group of immigrants, the undocumented, was
broadened into a generalized campaign to cut legal immigration quotas, and
disqualify even permanent legal residents from a wide variety of social

In the face of
this onslaught, groups that traditionally defended the rights of immigrants in
the U.S. became divided over the need to defend the rights of the
undocumented. Many argued that, although legal immigration has socially
beneficial effects, the entry of undocumented people into the U.S. has a
negative effect on society. The logic reduced the argument about undocumented
immigration to one over tactics for suppressing it. Is it better to halt or
control it by denying medical care and education for undocumented children or
by prohibiting undocumented immigrants from working or by militarizing the
border or by increasing the number of Border Patrol raids and deportations?

But in what
sense is undocumented immigration a problem? The Urban Institute estimated in
its May 1994 report, Immigration and Immigrants, Setting the Record
, that the undocumented population of the U.S stood between 2.5
and 3.5 million people in 1980, and rose to between 3 and 5 million just
before the passage of the Immigration Reform and Control Act. After IRCA’s
amnesty program, which allowed undocumented people to normalize their
immigration status, the population went from 1.8 to 3 million, and had risen
from 2.7 to 3.7 million by 1992, roughly the same level it was 12 years

That number
continued to rise during the 1990s, and according to census figures today
stands at as many as 9-11 million. This is the description of a stable process
and section of the U.S. population, both in terms of relative size and
constancy. This undocumented population constitutes about 1-2 percent of the
total population of the country.

The fact that
this same phenomenon exists in other developed countries argues that
undocumented migration is a stable process on a global scale and that its
origins lie in the grossly (and increasingly) unequal distribution of the
world’s wealth.

Migrant Watch
International estimates that 130 million people in the world live outside
their countries of birth. Neoliberal economic reforms and the transfer of
enormous wealth from developing to developed countries make survival
impossible for millions of people in their home countries. Many cope by
migrating to places with greater employment possibilities and higher standards
of living. U.S. investment in Mexico (the source of most migrants to the
U.S.), and the low-wage economic climate fostered by the governments of both
countries, push people north along with repatriated profits. Under the rules
of free trade, profits and investment have free passage across the border, but
people don’t.

Far from being a
social drain, the presence of undocumented people makes a net positive
contribution to the U.S. economy. According to the National Immigration Forum,
undocumented immigrants pay about $7 billion annually in taxes. Some taxes
paid by the undocumented, including $2.7 billion annually to Social Security,
and $168 million into state unemployment benefit funds, are direct subsidies
to these systems, since undocumented workers cannot by law collect any
benefits for their contributions.

In the state of
California alone, which accounts for about 43 percent of the nation’s
undocumented population, undocumented immigrants pay an additional $732
million in state and local taxes, in addition to federal payroll and social
security taxes. The state, in turn, according to the Urban Institute, spends
$1.3 billion on education for undocumented children, and $166 million for
emergency medical care for their families (the only kind of state-provided
medical care for which they qualify). It is difficult to make the case that
expenditure on the education of undocumented children, or on emergency medical
care for their families, is a net economic drain, given the gross overpayment
of benefits in many other areas.

According to a
UCLA study from the mid-1990s, undocumented workers contribute approximately 7
percent of the $900 billion gross economic product of the state of California,
or $63 billion. The Urban Institute estimated at the time that California
accounts for 43 percent of the nation’s undocumented population, or about 1.4
million people. The gross economic contribution by each undocumented immigrant
to the California economy was therefore about $45,000, including children, the
unemployed, and those too old or ill to work. While no statistical surveys
have determined the average wage of undocumented workers, their precarious
status keeps their wages near, and sometimes even below, the legal minimum,
which at (then) $4.25 per hour equaled an annual income of $8,840.

It is clear
that the labor of undocumented workers not only pumps tens of billions of
dollars into the state’s economy, but that the workers receive only a small
percentage of it, a much smaller percentage of the value which they produce
than that received by workers who are either citizens or legal residents. That
difference in the rate of exploitation is a source of extra profit for those
industries that are dependent on a workforce made up largely of undocumented
workers. The industries include 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, health care,
and domestic services.


U.S. immigration
law has historically been used to drive down the price of immigrant labor in
the U.S. Proposals for guest worker programs, put forward by agricultural,
high tech, meat- packing, tourism, health care, and light manufacturing
interests show a clear economic self-interest. But even without guestworker
programs, employer sanctions have played a central role in holding down the
price of labor in these industries. In an economy in which whole industries
depend on an abundant supply of immigrant labor, maintaining a subclass of
undocumented workers with fewer rights and less access to benefits is an
important source of profit. As sanctions have made that subclass much more
vulnerable, the labor of the undocumented has become much cheaper for

An undocumented
worker, for instance, considering whether to organize a union to win better
wages, has to take into account the possibility of being fired. Other workers
also risk being fired in similar situations, an important obstacle to all
union organizing efforts. But undocumented workers must also weigh employer
sanctions in the balance. Sanctions make finding another job much 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 will be forced to take whatever job is
available, at whatever wage. Under National Labor Relations Board rulings, if
an employer shows that a worker fired for union activity is undocumented, they
are not obligated to rehire her or him.

This same set
of choices also confronts undocumented workers who consider filing complaints
about unpaid wages, unpaid overtime, wages below the minimum, violations of
health and safety laws, sexual harassment, and violations of other basic legal
protections for workers. Worker protection laws exist on the books, but it is
difficult, often even impossible, for undocumented workers to enforce them.

All those legal
measures that are designed to make life unpleasant for undocumented
immigrants, who presumably are therefore encouraged to leave the country, also
make them more vulnerable and socially isolated.

“We all have a
right to work and eat,” says Los Angeles sweatshop worker Dolores Alcala. “The
immigration law is just trampling on all of us.” Unions trying to organize
immigrant workers agree. “Immigration law is a tool of the employers to keep
workers unorganized,” says Cristina Vasquez, regional manager in Los Angeles
of the Union of Needletrade, Industrial and Textile Employees. “The
Immigration and Naturalization Service helps them.”

UCLA researcher
Goetz Wolff documented falling wages among LA’s immigrant industrial workers
in the mid-1990s. In women’s apparel, for instance, the average hourly wage
fell from $6.37 to $5.62 between 1988 and 1993. UNITE estimates that 120,000
people work in LA’s garment sweatshops, almost all of whom are immigrants,
with a large percentage of undocumented. Falling wages are not just a problem
for garment workers. Wages are falling in paper recycling, plastics
manufacturing, textiles and food processing—all industries with a large
undocumented workforce. “Our wages and conditions are very bad no matter what
industry we work in,” says immigrant garment striker Sara Callejas. By
contrast, the average wage in aircraft production is over $20/hour. Even
during the recession of the early 1990s, the wage rose slightly. Aerospace, a
major industry in the Los Angeles basin, employs a mostly unionized and
native-born workforce.


The major factor
in maintaining the vulnerability of undocumented labor is employer sanctions.
Workplace enforcement of immigration law became the key element in the Clinton
administration’s overall immigration policy. In its ultimate expression,
Operation Vanguard, the INS conducted checks of immigration documents at every
meatpacking plant in Nebraska in 1999. Over 4,700 workers were called in by
agents and 3,000 left the plants. In Omaha, where a community organization,
Omaha Together One Community, had made beginning steps towards organizing
non-union plants, Operation Vanguard wiped out its rank- and-file organizing
committee. Meanwhile, the Administration transformed other government agencies
into immigration agents as well. Even Department of Labor inspectors looking
for minimum wage and overtime violations were required to check the I-9 forms
used by employers to track immigration status, and report workers they
suspected lacked documents. Sanctions justified the Social Security
Administration’s policy of sending letters to employers with lists of workers
whose numbers didn’t match the agency database. Those workers then were often
accused of lacking documents and fired.

In 1986, the
AFL-CIO pushed for the inclusion of employer sanctions in the Immigration
Reform and Control Act. Its position rested on the idea that if it became
illegal for the undocumented to work, fewer immigrants would come to the U.S.,
while those working here illegally would return home. The position, which
reflected the federation’s cold war, business union policies, created a color
line. It sought to protect wages for native-born workers by excluding
immigrants, rather than by organizing everyone, as the CIO and Wobblies had
done. Sanctions did not succeed in halting the flow of migrants to the U.S.,
though they did undermine their rights once they were here. Over the last
decade, the organizing efforts of immigrant workers have become more important
to unions. Last year, the percentage of U.S. workers belonging to unions
dropped from 13.5 percent to 13.3 percent, and fell to 9 percent in the
private sector. For the overall percentage to stay constant unions have to
organize 400,000 workers a year; to increase by 1 percent, they have to
organize twice that number. The AFL-CIO recently proposed a goal of organizing
1,000,000 workers yearly, a rate not achieved since the 1940s.

Since 1986, it
has become common for companies to use employer sanctions as a weapon to
resist organizing drives. Recognizing this, in February 2000 the AFL-CIO
passed an historic resolution calling for the repeal of sanctions, and for a
legalization program that would allow undocumented immigrants to normalize
their status. As a result, the political rules and alliances that limited the
possibility for immigration reform have also changed. Amnesty for the
country’s 9-11 million undocumented immigrants, which was off the radar screen
in Washington just a few years ago, is now a realistic goal.

Over the last
decade, immigrant workers have proven key to the labor movement’s growth. In
Los Angeles, the resurgence of union activism has largely rested on strikes
and organizing drives among immigrant janitors and hotel workers. Immigrant
carpenters, harbor truckers, garment workers, factory hands, and tortilla
drivers have staged pivotal strikes and organizing drives. Immigrant day
laborers, domestics, and gardeners have built independent organizations, even
without labor law protection and support from local unions, and LA is not an
isolated case. As union activity among immigrant workers became a national
phenomenon, the federation saw that defending their right to organize was in
its own self-interest.

In this labor
upsurge, documented and undocumented workers participate on an equal basis,
without distinction based on legal status. Unions seeking to build their
strength through an alliance with this movement have to acquire a basic
understanding of immigration law, to know how to help workers defend
themselves against it.

In this part of
the labor movement, the defense of the rights of all immigrants, including the
undocumented, has become a survival issue. Employer sanctions have provided
companies with a legally unassailable way of conducting mass firings when they
are faced with organizing activity. Since the law provides no remedy, unions
have been forced to use community pressure, direct action, and other tactics
based more on the ideas of social movements.


With the Bush
administration, employers see new opportunities for the vast expansion of
contract labor, guestworker programs. In January, Texas Senator Phil Gramm,
previously an opponent of almost any form of immigration, announced that he
would propose a vast expansion of bracero contract labor programs. “It is
delusional,” Gramm told reporters, “not to recognize that illegal aliens
already hold millions of jobs in the United States with the implicit
permission of governments at every level, as well as companies and
communities.” Gramm called for increased enforcement of employer sanctions, to
force migrants into his contract labor scheme. Mark Reed, former INS director
in Dallas and author of Operation Vanguard, argues that “we depend on foreign
labor, and we have to face the question —are we prepared to bring in workers
lawfully? How can we get unauthorized workers back into the workforce in a
legal way? If we don’t have illegal immigration anymore, we’ll have the
political support for guestworker.” Nebraska’s governor Mike Johanns a strong
critic of Operation Vanguard for causing production bottlenecks in meatpacking
plants, last year publicly endorsed a guestworker program for the industry.

officially opposes contract labor programs and calls for labor protections
within those that already exist. But Wilhelm, who heads the federation’s
immigration committee, says, “I don’t think it’s possible to have labor
protections for contract workers. To think the law will protect people whose
right to stay in the country ends with their job is not living in the real
world.” The conversion of Phil Gramm and at least part of the Republican right
to the pro-bracero position clarifies the immigration debate. Gramm, the
AFL-CIO, and immigrant rights activists agree on one thing: The choice to be
made is not over what will or won’t stop people from coming across the border,
but over their status in the U.S.

immigration policy will either move in the direction of removing sanctions and
legalization programs to erase the distinction of the second-class status, or
sanctions will become part of an even more codified contract-labor system. In
that case, the second-class status will become even more deeply ingrained in
the U.S. economy and society.


In meeting this
challenge, labor and immigrant rights advocates have to find ways of linking
the struggle for equality and civil rights with other social movements with
the same goals. It is impossible to fight against the use of the undocumented
as scapegoats for the problems of job flight and insecurity without calling
for limitations on the ability of transnational corporations to move capital
and production at will. Anti-immigrant domestic policies and free-trade
policies abroad are interconnected and mutually supportive.

fighting for immigrant rights is connected to struggles to expand social
services. Competition over declining resources can’t be eliminated without
demanding that all people share equal access to social benefits, and that the
cost of the benefits be paid through taxes on corporations and the wealthy.

against competition over jobs means fighting for a full employment economy,
instead of one in which hundred of thousands lose their jobs in corporate
downsizing and layoffs, and high levels of permanent unemployment are treated
as normal and necessary, especially in black and brown communities. When the
movement for jobs and labor rights makes progress, both immigrants and
non-immigrants benefit. The defense of the rights of immigrants is, in fact,
part of a broader social struggle over the distribution of wealth, the
protection of the rights of all working people and people of color, and the
ending of all forms of social discrimination. It is a fight over political
power.   Z


David Bacon is a freelance journalist and photographer.