In my last post, I discussed congressional complaints about an August 7 worksite-enforcement operation by U.S. Immigration and Customs Enforcement (ICE) in which 680 aliens were arrested at seven agricultural processing plants in Mississippi. That operation is part of ongoing criminal investigations, according to the U.S. Attorney's Office, including (according to ICE affidavits had anyone bothered to read them) investigations of some or all of the five employers who run those plants and/or their employees. In addition to the complaints I discussed previously, lawmakers critical of immigration enforcement have also asserted such operations have a "chilling effect" on workers seeking to protect their rights to a safe workplace. They have it exactly backwards: Illegal immigration creates conditions in which all employees are subject to exploitation, while worksite enforcement prevents such exploitation.
Specifically, on August 9, 2019, Chairman Elijah Cummings (D-Md.) of the House Oversight and Reform Committee, Chairman Jamie Raskin (D-Md.) of that committee's Subcommittee on Civil Rights and Civil Liberties, and Chairman Bennie Thompson (D-Miss.) of the House Homeland Security Committee sent a letter to Attorney General William Barr and Acting Homeland Security Secretary Kevin McAleenan demanding information about that operation.
My last post discussed the chairmen's contentions that parents were separated from their children in the course of that operation, and that the operation apparently targeted only the workers who were working illegally, and not the employers of those aliens (again, facts discounted by the aforementioned affidavits). I explained how it was premature for the chairmen to make the latter assumption, and that those responsibe for any separations were the parents themselves. I will note that none of the affidavits ICE submitted in connection with its applications for search warrants of those locations were referenced in that letter.
The chairmen made another point in their letter that merits analysis. They noted that one of the employers, Koch Foods, "paid $3.75 million in a 2018 legal settlement with the government to resolve a lawsuit brought by the Equal Employment Opportunity Commission [EEOC] on behalf of Hispanic workers who alleged race, sex, and national origin-based discrimination."
There have been other instances of ICE arrests shortly after a company faced non-immigration government enforcement. For example, in 2018, ICE carried out an enforcement action at a Salem, Ohio meatpacking plant, a week after the Occupational Safety and Health Administration [OSHA] fined the plant for $200,000 for multiple safety violations.
We are alarmed by the potential serious chilling effect of these enforcement actions close in time to these workers vindicating their rights to a safe working environment.
It is worth noting that even illegal immigrants are entitled to the protection of most of the labor laws of the United States, with the (obvious) exception of the employer-sanctions provisions in the Immigration and Nationality Act (INA). But that fact in no way protects them, absent an agreement with the government, from removal from the United States.
More importantly, however, the chairmen fail to grasp an essential truth that Congress itself has actually written into the immigration laws. One of the express reasons in section 212 of the INA for limiting the flow of alien workers to the United States is to protect "the wages and working conditions of workers in the United States." You can find numerous studies back and forth (including from the Center for Immigration Studies) discussing the effect of illegal immigration on wages. But how, exactly, does limiting immigration protect the "working conditions of workers in the United States?" Is this surplus verbiage? Was Congress not paying attention when it passed the law?
No. That law was written by legislators who had a tighter grasp on how the world actually works than at least some members of the current 116th Congress.
The United States has some of the best laws protecting working conditions of any country on the face of the earth in the history of man. When the pool of willing workers is much larger than the number of jobs that are available to them, however, employers are at an advantage when it comes to hiring, and some inevitably insist on working conditions that contravene those laws. Put another way, if potential workers get desperate enough, they will be willing to accept the terms set by the potential employer, even if those terms are in violation of the law and potentially injurious to the worker.
That fundamental truth is one of the reasons why unions exist — they limit the availability of labor so workers can bargain for better working conditions. Karl Marx wrote all about the benefits that accrue to the employer from illegally squeezing extra labor from the worker in Das Kapital; take a look at Volume 1, Section 2 captioned "The Greed for Surplus-Labour. Manufacturer and Boyard". (That section also discusses the employers' exploitation of the limited resources available to the government to investigate such abuses, and I commend all members of Congress to read it when they are considering cutting ICE funding).
This truth is also the main theme in John Steinbeck's The Grapes of Wrath, a tale of migrant farmworkers in the great depression. Remember Henry Fonda (Tom Joad) in the movie version: "If there was a law, they was workin' with maybe we could take it, but it ain't the law. They're workin' away our spirits, tryin' to make us cringe and crawl, takin' away our decency"?
Or, (for the younger reader) how about the movie Office Space, a comedy about workers in a generic software company in the 1990s? Vice President Bill Lumbergh constantly makes ridiculous last-minute demands on Peter Gibbons to perform extra work, which he is obliged to accept because Gibbons sees himself trapped in his job as the company is downsizing. After he gets hypnotized and stops caring, hilarity ensues and Gibbons ends up working a construction job cleaning up the office after it is burned down by Milton, who cracked when he, too, was exploited by the company to such a degree that he was no longer getting paid (and had his stapler stolen).
Unauthorized employment does not exist in a vacuum, and without effecting other employment laws. A failure to enforce the immigration laws creates a vulnerable and exploitable population of workers. The facts of the Koch Food case (if true, see my caveat below) make this apparent.
The EEOC press release relating to the 2018 settlement with that company describes the facts of the case referenced in the chairmen's letter from the commission's perspective:
According to the EEOC's lawsuit, Koch subjected individual plaintiff/intervenors and classes of Hispanic employees and female employees to a hostile work environment and disparate treatment based on their race/national origin (Hispanic), sex (female), and further retaliated against those who engaged in protected activity. EEOC alleges that supervisors touched and/or made sexually suggestive comments to female Hispanic employees, hit Hispanic employees and charged many of them money for normal everyday work activities. Further, a class of Hispanic employees was subject to retaliation in the form of discharge and other adverse actions after complaining.
That suit involved complaints that are more than 10 years old, allegedly occurring between 2004 and 2008. I say "allegedly" because the company denied the allegations, but in fact settled by paying $3.75 million in monetary damages and entering into a consent decree for three years to prevent violations in the future after fighting the case in court for eight years.
Interestingly, according to Reuters: "Koch said the plaintiffs made uncorroborated claims against the company as a means to obtain U.S. visas for crime victims who collaborate with U.S. authorities that would allow them to stay legally in the United States." That would suggest to me that the company was on notice that at least some of its workforce lacked employment authorization to begin with.
In any event, let's assume that the EEOC's allegations were all true. Could you imagine being employed at a business in which supervisors touched female employees and struck other workers? I would have gone to the police, even if I were not the victim of the offenses, because such conditions are not just intolerable to the victims, but would create a hostile workplace for all workers, including me.
Aliens illegally present United States, however, have placed themselves into a vulnerable position as relates to such abuses. Specifically, they entered the United States illegally or overstayed their nonimmigrant visas, and worked without authorization. They therefore run the risk that they may be removed at any time, or fired and (because of their illegal status) have difficulty finding work elsewhere. They have to tolerate the otherwise intolerable because of that vulnerability. This is not to blame the victim, but rather to note that the protections our country provides to its workers break down when some of those workers are here illegally.
That breakdown likely is not contained (nor could it be) to the population of those who are working without authorization.
Imagine that you are a U.S. citizen or alien with employment authorization who has a limited education and no portable work skills. As EEOC notes: "Koch Foods [is] one of the largest poultry suppliers in the world." The affidavit in support of ICE's application for a search warrant of Koch Foods stated that it was specifically for a plant the company ran in Morton, Miss., the same plant at issue in the EEOC case.
As of 2017, Morton had 3,423 residents, with an estimated per capita income in 2016 of $14,943, with 21.2 percent of its population living in poverty. Specifically, the number of white, non-Hispanic residents that year living in poverty in Morton was 16.6 percent; for Hispanic residents it was 11.9 percent; and for African-American residents an incredible 31.3 percent. The official poverty rate in the United States as a whole in 2016 was 12.7 percent, according to the Census Bureau. I have never been to Morton, Miss., but these statistics suggest that it is a poor place, compared to national averages.
On August 12, 2019, four days after the operation at that plant, Koch held a hiring fair for its Morton location. A press report from the Biloxi, Miss., Sun Herald about that event states: "By 10 a.m., a crowd of dozens was on hand, and [a] steady stream of people came and went. Most were black and spoke with accents from the American South. A few appeared white or Hispanic." That article notes that "many who applied Monday were chicken plant veterans," despite the fact that:
They understand the arduous and sometimes dangerous work of slaughtering, butchering and packaging chicken, from hanging up live chickens, to pulling off skin, to cutting with super-sharp knives, to boxing up chicken, much of it done in near-freezing temperatures. The line moves fast and people repeat the same motions over and over.
Why would anyone want to work under such conditions? The article continues:
Koch has hundreds of jobs posted for its Morton facilities on a Mississippi state government job board. Only a few dozen other jobs are listed within 10 miles of Morton, many of them at fast food restaurants or dollar stores. The options are a little better in the larger town of Forest, thanks to defense contractor Raytheon and a sawmill. But Tyson, Koch and other chicken plants still dominate the market. Pearl River Foods, a plant raided in the town of Carthage, posted 200 jobs Aug. 1, starting at $7.25 an hour. [Emphasis added.]
In other words, if you live in Morton, Miss., and you want a job, your job prospects are extremely limited, and you logically take what is available. How likely are you to complain about your working conditions? Again, logically, not very. Now, add in this, from the same article:
Angela Stuesse, an anthropology professor at the University of North Carolina who spent years among labor organizers in Morton and nearby towns, said the desire for cheap, docile labor led poultry firms to begin recruiting Spanish-speakers in the late 1990s. At first, Stuesse said they were people who could legally work. But they were eventually replaced by Mexicans, Guatemalans and others who often lacked legal working papers. Later, came a wave from Argentina, Uruguay and Peru. [Emphasis added.]
Fit the pieces together. Small, poor town; few job opportunities; and a population of vulnerable workers vying for the same positions in an "arduous and sometimes dangerous" industry that looks for a "cheap, docile" workforce. What would be your options if you needed a job but did not like the conditions under which you were forced to work?
You could report the plant to ICE (and the affidavit indicates that a number of tips were received by the agency about illegal hiring), but you would run the risk that not only would you lose your own job, but that the business may shut down and move elsewhere. In fact, a Washington Post article stated that individuals looking for jobs at the Koch Foods' August 12 hiring fair in nearby Forest were concerned that the company would not be able to find enough workers. That article revealed, however, that, in fact, Koch Foods was able to resume operations by the second shift on the day of the raids.
In reality, you probably would have to suffer the same working conditions that your unauthorized coworkers had to endure, or be replaced by other unauthorized workers. And, as a practical matter, working in a plant in which abuses are inflicted on your coworkers is an abuse in and of itself, as I alluded to above. Only worksite enforcement can address this issue by ensuring that the workforce is authorized for employment and can therefore seek the protections of the law free from the threat of removal.
I will note, as an aside, that the affidavit attached to the application for a search warrant at Koch Foods never mentions the EEOC case, its settlement, or the company's assertions therein, as bases for the agent's attestation that there was probable cause to believe that the company and others had committed violations of section 274A of the INA and 18 U.S.C. § 1001 (which prohibits the making of intentionally false statements). It was based on evidence that had been developed by ICE that there were aliens working at the facility illegally, and makes clear that the agency was investigating whether Koch Foods had "illegally employ[ed] subjects without work authorization in the United States."
I have assisted in the drafting of such warrants in the past, and would have placed the EEOC case and the employer's admissions front and center, if not made it the basis for the probable cause conclusion. ICE relied instead on its own exhaustive investigations. That the agency did not do so indicates either that it did not know about the EEOC case (somewhat unlikely) or that it did not want employees to hesitate to file complaints about labor abuses in the future (a fact that contradicts the chairmen's insinuations.
Aliens who enter the United States illegally or overstay and work without authorization, as noted above, have placed themselves in a vulnerable position as it relates to the protection of the labor laws of the United States. But in doing so, they have also created a set of circumstances in which the working conditions of their authorized coworkers, and the ability of those coworkers to seek the protection of the labor laws, are diminished as well.
For proof, reread Stuesse's statement of, above. Why would employers want "cheap, docile labor"? So that they can exploit them in violation of law.
Interestingly, the Washington Post in its article about the hiring fair made the following points:
The workers' efforts to explore jobs at the meatpacking plants go against the notion that Americans have no interest in the gritty jobs often held by undocumented workers who till the nation's farmland, slaughter and package meat, and care for the elderly.
Some people had never worked at a chicken plant, and others were looking to return to the industry, drawn by hourly wages ranging from $9.20 to $12, well above the minimum wage of $7.25.
The prospect of more money for American workers (both citizens and legal immigrants), in jobs with a legal workforce who can demand the enforcement of our nation's stringent labor laws, is the reason why the INA limits the number of foreign nationals who can come to the United States to work.
I will note the enforcement of our immigration laws is a goal in and of itself. But it also guarantees our sovereignty as a nation, protects the American people from criminal and national-security threats, and ensures that our shared values (including tolerance, equality, self-reliance, and the rule of law) will continue to thrive. As importantly, however, it protects the American worker. This entire operation in Mississippi (particularly if the EEOC and Stuesse are correct) is proof of that.
One final point: The contentions of the chairmen that are the basis of this post are internally inconsistent. Boiled down, the three are saying that Donald Trump wants to heartlessly enforce the immigration laws, and at the same time wants to deter employees from seeking the protections of the labor laws of the United States. But there is no better way to accomplish the second goal then by ensuring that the American workforce can seek those protections. And in order to do that, those workers must be here legally, unhindered by threats they can be removed if they complain.
Even in the absence of any worksite enforcement (or immigration enforcement for that matter), those employers who seek a docile workforce for exploitation will still threaten illegal workers with threats of firing and removal. The first threat because the world's poor will provide a ready workforce ready to take a fired employee's place. And the second threat because, even those who should know the immigration laws of the United States the best, don't (as the congressional letter reveals), so what can we expect of the newcomer? Take the worst-case scenario: Do you really think a poor, uneducated, illiterate worker from a country plagued by corrupt police and no labor laws would ignore that worker's boss when the boss says to "fall in line, or I am calling immigration," even if it is common knowledge that (again, worst case scenario) President Alexandra Ocasio-Cortez has abolished ICE?
Give the president and ICE some credit. Even if you oppose Trump politically, do not allow politics to get in the way of logic.