Day laborers, friend or foe: a survey of community responses.

• Author: Espana, Mauricio A.

INTRODUCTION

A landscaper named Ausencio is hanging seventy-five feet in the air suspended by only a two-inch rope as he attempts to trim a tree. (1) In one hand, he holds a chainsaw while with the other he tries to keep himself stable. (2) As he works diligently to cut down this tree, the rope becomes untied and he plummets to his death. (3) Under normal circumstances, Ausencio's co-workers and employer would run to his aid and summon an ambulance to help him. For Ausencio, however, none of this is a reality because of one reason; he is a day laborer. (4)

Communities throughout New York State, such as Farmingdale and Freeport, Long Island, Bensonhurst and Williamsburg, Brooklyn, and Woodside, Queens, have for some time grappled with how to integrate a day labor force into their communities. (5) Day laborers are typically at-will employees that are hired on public streets. (6) Although these communities rely on day laborers as a source of cheap labor, they also find the presence of these workers troubling. (7) Their major contentions are that they create unsanitary conditions, they are aesthetically detrimental to their neighborhoods, and they take away jobs from American citizens. (8) Some communities respond with overt hostility to day laborers. (9) Other communities implement solutions that not only move the hiring process of day laborers--and thus the workers themselves--off public streets, but also create permanent centers where private organizations can monitor employers and empower laborers by teaching them their rights. (10)

This comment discusses the various ways that communities that benefit from day laborers respond to the presence of this "underground" employment phenomenon. Part I provides some background into the day laborers' situation, livelihood, and legal rights. Part II discusses the competing issues faced by day laborers, as well as the issues the laborers present to community residents, employers, and the United States Government. Finally, Part III discusses the different solutions that communities confronted with day laborers have proposed and implemented, and concludes that it is in the best interests of all parties involved that communities accept day labors and accommodate them in shape up sites.

1. BACKGROUND

   Day laborers are primarily undocumented immigrants from Latin America that seek work on a daily basis. (11) A day laborer is "someone who gathers at a street corner, empty parking lot, ... or an official hiring site, to sell their labor [, as an individual rather than union or company,] for the day, hour, or for a particular job." (12) Most of them are undocumented immigrants that enter the United States illegally in search of work. (13) Although the majority of them are Mexican immigrants, many come from throughout Southern and Central America, and most lack proficiency in the English language. (14) The majority of day laborers are unable to work in the mainstream labor market either because they are undocumented or because they lack the ability to speak English. (15) Additionally, the overwhelming majority of day laborers are men between the age of eighteen and sixty-five. (16) In New York, however, the day laborer phenomenon is not exclusive to Latino men; it also includes women and Eastern Europeans. (17) Day laborers usually emigrate from their countries because of dire economic or political situations and live meager, modest lives in the United States. Some individuals come to the United States in order to support their families back home, where there are no job opportunities. (18) Others leave their homes to escape their war torn or politically unstable countries in fear of being persecuted or killed. (19) Regardless of why they came to the United States, the overwhelming majority live in uninhabitable conditions, sharing a home with as many as a dozen or more workers. (20) They must live under these conditions either because they do not make enough money to live otherwise or because their main obligation is to send money to their families back home. (21)

   The day laborers' plight is such that they will perform any task that an employer will hire them to do. (22) Employers usually hire them to perform unskilled or low-skilled jobs, usually in construction, landscaping, or rubbish removal. (23) Although the type of work they perform is not unique or distinct to day laborers, what distinguishes them is their method of organizing and obtaining work. A day laborer's daily routine usually begins early, around five or six in the morning. (24) While most workers head out their door in the morning to their place of employment, day laborers leave for a designated public location that serves as their de facto employment site. (25) These designated locations are usually near commercial streets or busy hardware stores. (26) At these locations, anywhere from forty to two hundred laborers congregate and await prospective employers to solicit their services. (27) Once an employer arrives, swarms of laborers surround the vehicle and begin negotiating over the price for their services. (28) Since there is usually a substantial number of day laborers anxious to have a day's work, employers reap a bargain by having the men outbid each other for the lowest price. (29) If a day laborer is fortunate, he will be employed for at least that day. (30) If a day laborer, however, has not been hired by noon, it is most likely that he will not work that day. (31)

   Day labor is a national employment phenomenon. (32) Cities throughout the United States, in states including California, Illinois, Ohio, Pennsylvania, and Texas, are faced with the day labor employment phenomenon and the consequences and controversies it brings forth. (33) New York has one of the largest populations of day laborers, approximately 15,000. (34) This fact is not surprising considering that, according to the Office of Immigration and Naturalization Services ("INS"), New York is the second-highest destination of "legal" immigrants (35) and third-highest of "illegal" immigrants. (36)

   1. Day Laborers' Rights

      Day laborers who enter the United States illegally have constitutional rights, including the right to loiter for innocent purposes on public property. (37) The right to loiter on public property arises from the "liberty" interest protected by the Due Process Clause of the Fourteenth Amendment. (38) This "liberty" right is significant to day laborers because their ability to obtain work, and as such their livelihood, is dependent on exercising this right.

      Additionally, federal labor laws such as the Fair Labor Standards Act of 1938 ("FLSA") (39) and the National Labor Relations Act ("NLRA") (40) protect day laborers since they apply to all employees regardless of immigration status. (41) The FLSA is the federal mandate that provides minimum labor guidelines for all employees. (42) The Department of Labor ("DOL"), created in the early twentieth century, is the governmental entity dedicated to enforcing its guidelines. (43) The FLSA is significant because courts have consistently held that it provides protection to all "employees" regardless of their immigration status. (44)

      "[I]t is well established that the protections of the Fair Labor Standards Act are applicable to citizens and aliens alike, and whether the alien is documented or undocumented is irrelevant." (45) The Fifth Circuit, in In re Reyes, based its holding on the fact that, for purposes of the FLSA, an employee is defined as "any individual employed by an employer." (46) The majority of courts, soon thereafter, followed this decision. (47) Moreover, in 1987, the DOL filed a statement in which, relying solely on In re Reyes, they took "the position that illegal aliens can enforce the wage and hour provisions of the FLSA." (48)

      The NLRA, also a federal mandate, is dedicated to ensuring that labor disputes do not disturb the free flow of commerce and industry. (49) The NLRA accomplishes this mandate by "encouraging the practice and procedure of collective bargaining and by protecting the exercise, by workers, of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." (50) Unlike the FLSA, which is enforced by the DOL, the NLRA is enforced and regulated by the National Labor Relations Board ("NLRB"). (51) The NLRB is not a governmental agency like the DOL, but rather an independent federal agency established by Congress in 1935. (52) Nonetheless, courts have also held that the NLRA applies unequivocally to undocumented immigrants. (53)

      In 1979, the Ninth Circuit held, in National Labor Relations Board v. Appollo Tire Company, Inc., (54) that illegal aliens are entitled to all rights under the NLRA. (55) Similar to In re Reyes, the Ninth Circuit based its holding on the notion that the NLRA defines "employees" broadly, thereby including illegal aliens. (56) Moreover, it explicitly excludes certain individuals from its protections, but illegal aliens are not among them. (57) The Supreme Court, in Sure-Tan v. National Labor Relations Board, (58) affirmed and validated National Labor Relations Board v. Appollo Tire Company, Inc. by holding that the NLRB's construction of the definition of "employee" as including illegal aliens is entitled to considerable deference. (59) It is also significant that the Ninth Circuit went further and asserted that the Immigration and Naturalization Act ("INA") neither prohibits employers from hiring illegal aliens nor prevents them from enforcing any of their rights under the NLRA. (600)

      1. Protection of Day Laborers Takes a Backward Step

      Last year, however, the Supreme Court's restrictive reading of the Immigration Reform and Control Act of 1986 ("IRCA") (61) limited the scope of undocumented worker's rights under the NLRA. (62)' Under the IRCA regime, it is impossible...