Foreign Workers as State Legislators?

By David North on July 12, 2010

Foreign workers may displace Americans from many jobs, but as elected members of a state legislature?

A bizarre, migration-related, and up-to-date listing on a U.S. Department of Labor website raises that possibility, and even quotes a prevailing wage for such workers.

Think about mythical Assemblyman John Migro, a citizen of the Solomon Islands, representing San Diego in the California State Legislature. Somebody has got to set his salary, right? DOL can do that for you.

Since every state and territory's constitution requires one to be a citizen before you can serve in the legislature, you might think that there would be no point in setting a prevailing wage for foreign workers in that occupation – but you would be wrong.

The prevailing wage, speaking broadly, is what a U.S. employer must pay his workers before he is allowed to bring in foreign workers, and then he must pay at least that amount to the nonimmigrant workers. If a nation is going to import foreign workers then some mechanism, such as this one, is needed to prevent those workers from unduly depressing the labor markets, and the department has been using the prevailing wage concept for at least half a century.

As Professor Norman Matloff has pointed out in a detailed report, the prevailing wage for H-1B workers has been so constructed, by Congress, that it gives employers total freedom to pay what they want, which leads to depressed wages.

But before we get into the built-in problems involved in using any prevailing wage, let me tell you what I found when playing hooky on the internet.

In the line of duty I got to the DOL's Foreign Labor Certification Data Center, and its Online Wage Library. I then clicked on "wage search wizard," and when that screen came up I switched (mentally) to frivolity. There was the usual menu of states and territories, and since I write from time to time for a virtual newspaper there, the St. Thomas Source, I went to Virgin Islands. (Frivolous because guestworkers have not been in those islands in large numbers since the Nixon Administration.)

I soon was presented with a long list of occupations, and near the top was "legislators." Knowing that the V.I. has an over-staffed, wasteful local government, and aware that the members of its unicameral body were pretty well paid. I clicked on that choice.

I learned that the Wage Library thought that V.I. legislators had four levels of wages, from $15,500 a year to $48,540 a year and that their task was to "Develop laws and statutes at the Federal, State or local level." In other jurisdictions, such as California, the wage levels for legislators varies (in the Wage Library) by locality.

On a frivolous level there are several things wrong with the Wage Library on this point: first, virtually all legislators in a given jurisdiction get the same wages (though in some states, such as New York, some, such as party leaders, are more equal than others); second, there are no steps in the wage patterns; and third, the actual pay in the V.I. is $85,000 a year, nearly double the $48,540 top bracket printed. Maybe the Labor Department is right about the actual value of those legislators, but that is not the issue.

Further, if you want to know how much legislators are paid, you do not have to resort to some software-controlled system; you can just look it up on the internet. There's hard data on this variable in all states. (Similarly, the legislative pay estimate by the Wage Library for the east side of San Francisco Bay in California has a top bracket of $65,000 a year, while the rate according to a think tank site is $113,098 plus, of course, living expenses during the legislative session. The Wage Library is equally wrong, in the other direction, at the bottom of the scale; the actual Mississippi salary is $10,000 a year plus expenses, while the DOL system gives the legislators from a rural area in that state a range of $16,690 to $30,050 a year.)

Finally, even the sleepiest, lowest-level clerk looking over the data set would know that there is no demand for even the "best and the brightest" foreign workers in any elective legislative body, and so the whole entry should have been eliminated. But that assumes that some human intelligence was involved, at least in the editing, and that apparently is the wrong assumption.

Frankly, while I am convinced that something must be done to prevent nonimmigrant workers from depressing wages, I am not sure that prevailing wage (or in agriculture, the "adverse effect wage") rates are the best approach; they all appear to be either susceptible to employer manipulation, or, in the case of the legislators, subject to odd results.

Decades ago, when I was working for the New Jersey state labor department, and a little later for the U.S. Department of Labor, I noticed that adverse effect wage rates for farmworkers were figured in hourly terms, but virtually all harvest work was paid on a piece-rate basis. Growers were forced to pay the hourly wages, but were free to fire workers who picked too slowly for their piece rates to equal the adverse effect wage. Another technique, used in what was then the hand-cutting of sugarcane in Florida, was to adjust, unlawfully, the reported (and paid) hours downward if the worker did not use the machete fast enough.

Both of those ploys rendered the adverse effect wage rates totally useless.

I would downplay the use of a prevailing wage as a sorting mechanism and, instead, force would-be employers of foreign workers to pay a stiff, upfront fee to the unemployment insurance trust fund of several thousand dollars for the use of foreign workers over, say, a six-month period. The fee would be set higher for higher-skilled workers than for lower-skilled ones, and then re-imposed at the end of the six-month period for any extension. Further, the employer would have to pay the foreign workers a prevailing wage worked out by a government economist, not a computer.

Incidentally, American state legislators, at least in better-paying states, receive higher salaries than the pay levels seen in the places where we recruit foreign workers. With American salaries you could pick and choose and get some real talent. Maybe a well-seasoned provincial legislator from, say, Sri Lanka, might be a very useful addition to the unicameral legislature in the Virgin Islands.

We may not know how to elect such a person, but thanks to DOL we know much we would have to pay him.