Punishing Workers Through Bosses

By Michelle Chen May 01, 2009

The Obama administration has taken tentative steps toward reorienting the immigration debate, ostensibly moving the focus from undocumented workers onto their employers. According to an announcement released Thursday by Homeland Security, Immigration and Customs Enforcement (ICE) is centering its enforcement actions on:

“targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers…. Effective immediately, ICE will focus 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.”

Punishing employers might look like a decent alternative to the indiscriminate raids and deportations that have shattered communities over the past few years. But activists in the trenches of the immigrant rights struggle warn that whether the government criminalizes the workers or the people who hire them, the net effect is that those with the least power feel the most pain. Immigrant advocacy groups have long criticized so-called employer sanctions for perpetuating a two-tiered workforce that invites discrimination and exploitation. The Break the Chains Alliance, a coalition of worker organizations in New York, Texas, Minnesota, Arizona and Illinois, calls the policy a “modern day slave law” (read: not exactly getting at the "root cause"):

"stronger enforcement will only push the underclass further underground, not eliminate it. It will push conditions down further and faster, making it impossible for workers to survive–creating increased mass unemployment, while forcing others to be completely overworked."

Homeland Security has also pledged to apply “humanitarian guidelines” to a wider range of workplaces. But the National Immigration Law Center says the guidelines are a poor defense against systemic mistreatment, calling for stronger rules that “guarantee that workers are not detained when alternatives to detention are available, obtain prompt access to counsel, and limit the transfer of detained immigrants away from their homes and families.” Not to mention, the lack of a functional verification system—the pilot E-verify program remains riddled with technical problems—promises to make employer crackdowns even more chaotic. Though enforcement has historically been spotty to nonexistent, the employer sanction regime has been in place for over two decades. In the past, the sanctions drew wide opposition for giving bosses extreme leverage over workers. If past is prologue, an enforcement-only approach would eviscerate organized labor as employers intimidate immigrant workers to deter unionizing. Bill Ong Hing and David Bacon noted in a Nation commentary that the recent wave of workplace raids hindered a key unionizing effort at the Smithfield plant in Tar Heel, North Carolina. "Using Social Security numbers to verify immigration status makes the firing and blacklisting of union activists all but inevitable,” they wrote. So who deserves to be "sanctioned" in the immigration system? Hing and Bacon make the case for looking past the arbitrary legal-illegal distinction and wielding labor law in ways that actually improve workers’ lives:

“The alternative to employer sanctions is enforcing the right to organize, minimum wage, overtime and other worker protection laws. … And if a fair legalization program were passed at the same time sanctions were eliminated, many undocumented workers already here would normalize their status. A more generous policy for issuing residence and family-unification visas would allow families to cross the border legally, without the indentured servitude of guest-worker programs.”

That doesn’t mean immigration can’t be controlled somehow. But years of failed sanction policies prove that penalizing people for participating in the economy can’t, and shouldn’t, stop them from seeking opportunity wherever they can find it. Image: Standing FIRM