The rise and fall of employer sanctions.

• Author: Bacon, David

ABSTRACT

Workplace raids by gun-wielding Immigration and Customs Enforcement (ICE) agents that resulted in the mass arrests of dozens and sometimes hundreds of employees have ceased under the Obama administration. But "silent raids," or audits of companies' records by federal agents, that replaced them have resulted in the firing of thousands of undocumented workers. The administration defends these "softer, gentler" operations, yet the result is the same: workers who are here to support their families are out of work.

In this essay, David Bacon and Bill Ong Hing argue that ICE raids--be they of the Bush or the Obama kind--should cease. The basis for these operations--employer sanctions--should be repealed, and true reform that recognizes the rights of all workers should be enacted.

TABLE OF CONTENTS Abstract Introduction I. Obama's Interior Enforcement Strategy II. Background on Employer Sanctions III. Union Focus--Coincidence or Intentional IV. Institutionalized Racism Conclusion INTRODUCTION

Ana Contreras would have been a competitor for the national tai kwon do championship team in 2009. She was fourteen years old. For six years she went to practice instead of birthday parties, giving up the friendships most teenagers live for. Then in October 2009, disaster struck. Her mother Dolores lost her job. The money for classes was gone, and not just that. "I only bought clothes for her once a year, when my tax refund check came," Dolores Contreras explains. She continues:

Now she needs shoes, and I had to tell her we didn't have any money. I stopped the cable and the internet she needs for school. When my cell phone contract is up next month, I'll stop that too. I've never had enough money for a car, and now we've gone three months without paying the light bill. (1) Dolores Contreras shared her misery with eighteen hundred other families. All lost their jobs when their employer, American Apparel, fired them for lacking immigration status. For months she carried around the letter from the Department of Homeland Security (DHS), handed to her by the company lawyer. It says the documents she provided when she was hired were no good, and without work authorization, her work life was over. (2)

Of course, it was not really over. Contreras still had to keep working if she and her daughter were to eat and pay rent. So instead of a job that barely paid her bills, she was forced to find another one that would not even do that.

Contreras is a skilled sewing machine operator. She came to the United States thirteen years earlier, after working many years in the garment factories of Tehuacan, Puebla, Mexico. There, companies like Levis make so many pairs of stonewashed jeans that rumor has it the town's water has turned blue. In Los Angeles, Contreras hoped to find the money to send home for her sister's weekly dialysis treatments, and to pay the living and school expenses for four other siblings. For five years she moved from shop to shop. Like most garment workers, she did not get paid for overtime, her paychecks were often short, and sometimes her employer disappeared overnight, owing weeks in back pay.

Finally Contreras got a job at American Apparel, famous for its sexy clothing, made in Los Angeles instead of overseas. (3) She still had to work like a demon. Her team of ten experienced seamstresses turned out thirty dozen tee shirts an hour. After dividing the piece rate evenly among them, she would come home with $400 for a four-day week, after taxes. She paid Social Security too, although she will never see a dime in benefits because her contributions were credited to an invented number. (4)

Now Contreras is working again in a sweatshop at half what she earned before. Meanwhile, American Apparel took steps to replace those who were fired. (5) Contreras says they are mostly older women with documents, who cannot work as fast. "Maybe they sew 10 dozen a day apiece," she claims. "The only operators with papers are the older ones." Younger, faster workers either have no papers, or if they have them, they find better- paying jobs doing something easier. "President Obama is responsible for putting us in this situation," she charges angrily. "This is worse than an immigration raid. They want to keep us from working at all." (6)

Contreras is right. The White House website says, "President Obama will remove incentives to enter the country illegally by preventing employers from hiring undocumented workers and enforcing the law." (7) In June 2009, he told Congress members that the government will be "cracking down on employers who are using illegal workers in order to drive down wages--and oftentimes mistreat those workers." (8)

The law Obama is enforcing is the 1986 Immigration Reform and Control Act, (9) which requires employers to keep records of workers' immigration status, and prohibits them from "knowingly hiring" those who have no legal documents, or "work authorization." (10) In effect, the law made it a crime for undocumented immigrants to work. This provision, employer sanctions, is the legal basis for all the workplace immigration raids and enforcement for a quarter century and now for Obama's auditing of employment records. The end result is the same: workers lose their jobs. Sanctions pretend to punish employers, but in reality, they punish workers.

1. OBAMA'S INTERIOR ENFORCEMENT STRATEGY

   Workplace Immigration and Customs Enforcement (ICE) raids by gun-wielding agents resulting in the mass arrests of dozens and sometimes hundreds of employees that were common under the George W. Bush administration appear to have ceased under the Obama administration. (11) Legally questionable mass arrests continue to occur in neighborhoods under the pretext of serving warrants on criminal aliens. (12) However, disruptive, high-profile worksite raids appear to have subsided. When a Bush administration- style ICE raid took place in Washington State in February 2009 soon after Janet Napolitano took the helm as Secretary of the Department of Homeland Security (DHS), she expressed surprise and ordered an investigation. These types of raids were not in her strategy plan she noted; instead enforcement in her regime would focus on employers who hire undocumented workers, not on the workers themselves. (13)

   Make no mistake, although deportations related to worksite operations may have decreased under the Obama approach in contrast with that under George W. Bush, actual deportation numbers are not down. According to the Washington Post, the Obama administration is deporting record numbers of undocumented immigrants, with ICE expecting to remove about 400,000 individuals in 2010. (14) The total is nearly ten percent above the Bush administration's 2008 sum and twenty-five percent more than were deported in 2007. (15) According to ICE, the increase has been partly a result of deporting those persons picked up for other crimes and expanding the search through prisons and jails for deportable immigrants already in custody. (16) "Unlike the former worksite raids that led to arrests and deportation, the 'silent raids,' or audits of companies' records by federal agents, usually result in firings." (17) "Just 765 undocumented workers have been arrested at their jobs in 2010 through early summer, compared with 5,100 in 2008, according to Department of Homeland Security figures." (18)

   However, as we see from the Contreras family's plight, the Obama administration's focus-on-employers-rather-than-workers strategy in fact falls squarely on the shoulders of the workers. Immigration raids at factories and farms have been replaced with a quieter enforcement strategy: sending federal agents to scour companies' records for undocumented immigrant workers. "While the sweeps of the past commonly led to the deportation of such workers, the 'silent raids,' as employers call the audits, usually result in the workers being fired, although in many cases they are not deported." (19) The idea is that if the workers cannot work, they will self-deport, leaving on their own. However, they actually do not leave because they need to work. They become more desperate and take jobs at lower wages. (20) Given the increasing scale of enforcement, this can lead to an overall reduction in the average wage level for millions of workers, which is, in effect, a subsidy to employers. Over a twelve-month period, ICE conducted audits of employee files at more than 2900 companies. (21) "The agency levied a record $3 million in civil fines [in the first six months of 2010] on businesses that hired unauthorized immigrants, according to official figures." (22) Thousands of workers were fired. (23)

   Employers say the audits reach more companies than the work-site roundups of the Bush administration. The audits force businesses to fire every suspected undocumented worker on the payroll--not just those who happened to be on duty at the time of a raid--and make it much harder to hire other unauthorized workers as replacements. Auditing is effective in getting unauthorized workers fired for sure. (24)

   Consider other examples. An audit of Gebbers Farms in the orchard town of Brewster, Washington yielded results that were similar to what happened at American Apparel. Immigration inspectors scoured the records of Gebbers Farms and found evidence that approximately 550 of its workers, mostly immigrants from Mexico, did not have proper documentation. (25) So, those workers were fired. (26) ICE officials also pressured one of San Francisco's major building service companies, ABM, into firing hundreds of its own workers last spring. (27) ICE agents told ABM that they had flagged the personnel records of those workers. (28) Weeks earlier, the agents sifted through Social Security records and the I-9 immigration forms all workers have to fill out when they apply for jobs. (29) They then told ABM that the company had to fire 475 workers who were accused of lacking legal immigration status...