Last April, Ramon Mendez, a Mexican-born roofer in Los Angeles, complained to the Department of Labor that the contractor he worked for had stiffed him out of $12,000 he'd earned.
"Within a few days, immigration officers showed up at his house and put in a deportation order," says Cliff Smith, business manager of Roofers and Waterproofers Local 36 in Los Angeles. But Mendez was on the street nearby and saw them coming. He escaped, and with union, community, and political support, was able to make a deal. He turned himself in to the Bureau of Immigration and Customs Enforcement, and as he had no criminal background and the agency has a policy of staying neutral in labor disputes, he was given an "order of supervision" and later a work permit. However, says Smith, "vindictive ICE officials are requiring him to wear an ankle bracelet, making it difficult to hold steady employment to provide for his wife and four children."
Local 36 has no proof that the accused contractor reported Mendez to ICE, but the timing was definitely suspicious, Smith adds. The union has filed a Freedom of Information Act request for details on his case.
How employers use immigration laws against workers who speak out on the job is a complex, murky world. It's not as black-and-white as it was under George W. Bush, when massive ICE raids often coincided with union campaigns—such as the 2008 raid at Agriprocessors, a meatpacking plant in Postville, Iowa that the United Food and Commercial Workers was trying to organize, where 389 people were arrested and 270 jailed for using Social Security numbers that weren't their own.
The Obama administration doesn't do that kind of raid. Instead, it has preferred what some call "silent raids" or "desktop raids." It has quadrupled the number of audits of workplaces' I-9 "employment eligibility verification" forms, to about 2,000 a year, according to a 2013 report by the National Employment Law Project.
"It's not guys in black fatigues now," says Mike Henneberry of UFCW Local 5 in California. "It's bureaucrats on computers getting people fired."
"The buildup of immigration enforcement provides unscrupulous employers with additional tools to retaliate against immigrant workers who seek to exercise their rights," the NELP report said. More than 2 million undocumented immigrants were deported in Barack Obama's first five years in office—more than in the Bush administration's full eight—and employers are still finding ways to use immigration laws against workers complaining about conditions or trying to organize unions.
One common tactic is ordering workers to "reverify" their I-9 forms, as businesses are required to fire employees who can't prove they're legally allowed to work. "It's very convenient for employers," says an immigration specialist at one national union, who asked for anonymity because he is not authorized to speak on the record. "An I-9 audit gets rid of the complainers. It's really damaging when you have organizing going on."
When workers at Mi Pueblo Food Center, a Northern California supermarket chain, began picketing and leafleting in 2012, the stores "all of a sudden" volunteered to use ICE's E-Verify database to check workers' Social Security numbers, even though it had never enrolled before, says Henneberry. That was "pretty bizarre" given that the chain caters mainly to Mexican and other Latino immigrants, he adds.
I-9 forms are supposed to be checked only for new hires, "not for people who've been here five-six-seven-eight years," says Pete Maturino, president of United Latinos of UFCW and head of Local 5's agricultural division. The result at Mi Pueblo, where the owner "would only hire people who are undocumented because they won't speak up," was that about 750 workers, 70 percent of the stores' staff, were terminated.
This does not directly lead to deportation, but "ICE goes to people's homes," says Nelson Motto, an organizer with the National Guestworker Alliance in New Orleans. "The biggest challenge is that it's extremely difficult to get ICE to admit that they were tipped off by the employer." In one case, when construction workers in Washington, DC, were trying to form a union, the house where some of them were staying was raided. "We haven't been able to prove that the employer tipped ICE, but if you ask the workers, they're 100 percent sure," he says.
Employers also ask to reverify I-9s when they want to avoid responsibility for an accident, Motto adds.
Workers have some protection, says Henneberry, from a 1998 memorandum of understanding between the Department of Homeland Security and the Department of Labor that ICE will hold off on raids if there's a union-organizing campaign underway. Last year, says Motto, Jamaican guest workers cleaning hotels in Panama City and Dustin, Florida were able to use this to wage a strike when their employer threatened to deport them after they complained about not getting enough hours and receiving paychecks for $0. The key tactic, he explains, was immediately notifying ICE that there was a labor dispute going on and getting the agency to issue a written neutrality agreement. "That provided the workers a bit of relief," he says.
Paradoxically, says the immigration specialist, ICE is more likely to initiate audits of better-paying employers, as they are more likely to "have their papers in order" and are thus easier to investigate than low-end employers. Employers who pay cash, who classify workers as independent contractors to escape wage and safety regulations, or are franchises technically not connected to the brand-name corporation, are harder to track. These employers are more likely to initiate audits on their own, and their workers have fewer protections when they try to organize or make complaints.
"If we have any kind of smoking gun that the employer did that, we can go after them," he says, but if not, they can't prove anything—although in one case, an employer left a voicemail message telling the union, "I'm going to have to call ICE if you don't back down."
Immigrant construction workers are particularly vulnerable, says Cliff Smith of the Roofers, because their work is intermittent, temporary or day labor. He calls Los Angeles "the wage-theft capital of the country."
In 2012, according to the NELP report, two Brazilian construction workers from Massachusetts were deported after they tried to collect $6,500 a subcontractor owed them for a summer's work installing plaster and sheetrock in Boston. When they went to the subcontractor's home in the New Hampshire suburbs, he called police, who stopped them and turned them over to ICE.
Simply exploiting fear can discourage workers from speaking out. "You only have to call ICE a couple times, and then everyone knows it's a possibility," says Nicky Coolberth of the UFCW.
In agriculture and related industries, where about 70 percent of workers are undocumented, the anti-union consultants employers hire can be "pretty subtle," says Pete Maturino. In formal unionization campaigns, he explains, organizers are allowed to visit workers at home, so employers give their names and addresses to the National Labor Relations Board, which passes them on to the union. The consultants will apologize to the worker for that, saying, "I had to give your name and address to the federal government, and I know your situation."
At an onion-processing plant in Firebaugh, California, he says, consultants told workers in one-on-one meetings "you have to be documented to be a member of the union." At the Apio salad-processing plant in Guadalupe on the Central Coast, the consultants told workers that "union membership requires you to be documented, so a lot of you are going to lose your jobs." ("In fact, the union is required to represent members no matter what their status," responds Coolberth.)
Results of the vote held at Apio Dec. 5 are still undecided, according to the NLRB's Los Angeles office. Preliminary results showed more workers voting against joining the UFCW, but there were enough challenged ballots—135 out of more than 750 cast—to possibly swing the election in the union's favor.
The language barrier is another issue, says Motto. When workers have to sign papers they don't understand, documents that might lead to their deportation, it's "a very intimidating space to be in."
These tactics don't always work, however. Last February, after 19 workers at Alameda County Industries, a garbage-recycling company in San Leandro, California, signed a letter announcing that they were going to sue for being paid almost $6 an hour less than the city's $14.17 "living wage," 18 of them were fired on the grounds that an ICE audit a year before had revealed they were undocumented. The news of the audit provoked a strike, and in October, workers at the facility voted overwhelmingly to join Local 6 of the International Longshore Workers Union.
"A lot of times, undocumented workers are our strongest supporters, because they've been through so much and they won't take any crap," says Henneberry.
In the courts, undocumented workers have two main problems, says Rebecca Smith, deputy director of the National Employment Law Project: actually enforcing their rights, and having their status exposed.
The key legal precedent is the Supreme Court's 2002 decision in Hoffman Plastic Compounds v. NLRB, in which a 5-4 majority held that a Mexican immigrant illegally fired for being a union supporter had no right to get back pay or his job back, because he was "never lawfully entitled to be present or employed in the United States."
That decision, says Smith, "unleashed this whole wave" of employers claiming that undocumented immigrants were not entitled to back pay, workers' compensation, or freedom from racial or gender discrimination. Lower-court rulings have moderated that somewhat since then, she adds, as "there is no credible argument that unauthorized workers aren't entitled to their basic wage for work—a contrary view would condemn them to slavery."
In 2011, when a Colorado restaurant worker sued his former employer for wage theft, a federal court ruled that the employer's attempts to find out his immigration status were "an improper attempt to harass and intimidate Plaintiff." In 2010, the Washington Supreme Court held that admitting evidence that a construction worker injured on the job was undocumented was more likely to prejudice the court than prove anything relevant.
Workers have won most such cases, Smith says, but employers still use "very aggressive discovery tactics" to reveal their undocumented status in court, and there have been "a couple of outlandish decisions." In 2011, a federal judge in Washington state ordered apple-orchard workers suing their employer for sexual harassment to reveal their immigration status, saying that the women's emotional distress might have been caused by being undocumented and not from having had a foreman stick his hand down their pants. In a class-action suit about wage theft in California last year, the judge said undocumented workers could not be among the named plaintiffs representing the class of unpaid workers.
ICE recognizes the potential for employers to take advantage of immigration laws, says the immigration specialist, but its general policy of not interfering with labor disputes varies from place to place. Some local offices, he says, have close relations with the employers they police.
The 1998 memorandum of understanding with the Department of Labor suspends ICE enforcement at a workplace only while there is a federal investigation of workers' wage and hour or health and safety complaints, the NELP report notes. It does not suspend it during state investigations of wage theft or safety violations, or protect workers who make claims about discrimination or for workers' compensation—and it "explicitly allows ICE to resume or begin an audit after the Department of Labor investigation concludes."
Hope for Change from Obama?
Will President Barack Obama's executive orders intended to enable an estimated 4 million undocumented immigrants to stay in the country make a difference?
Rebecca Smith calls them "a huge step forward that will give immigrant workers protection." She hopes they will allow more workers to come forward.
The UFCW's Mike Henneberry says he's "glad for the incremental changes," but cautions that they will cover less than half the nation's 11 million undocumented immigrants.
Giving workers some kind of assurance that they won't be deported doesn't mean retaliation will stop, says Nelson Motto of the Guestworkers Alliance. The Obama plan might even make things worse for those who don't qualify, by pushing them deeper into the underground economy. He believes there needs to be comprehensive immigration-reform and worker-rights laws.
The AFL-CIO has proposed 10 actions the President could take through executive order. Among them are creating a process in which workers would be safe from retaliation based on their immigration status for joining a union or making a health or safety complaint; "deprioritizing I-9 audits of companies that already pay more than industry averages and/or have an established collective bargaining relationship with their employees"; revising procedures to ensure that employers can't "embroil the federal immigration enforcement mechanisms into labor disputes"; and making victims of workplace crimes equally eligible for the "U visas" given immigrants who are victims of other crimes and cooperate with police.
"Providing protection to undocumented individuals who assert their workplace and civil rights protects all workers," it says, and "allowing them to be detained or deported for such activity has a dangerous chilling effect on activity to enforce workplace standards."
"There needs to be some kind of legalization," says Motto. "If not, there's nothing that will force these employers to reinstate these workers. At the end of the day, they're still undocumented."