Not in Our Generation

For the past few years, the United States has been in the midst of a heated emotional and polarizing debate over immigration reform.  The loudest voices in this debate have come from the extreme right, whose favorite slogan has become,  “What part of illegal don’t you understand?”  They have quite successfully been able to frame the immigration policy debate in “moral” terms, getting the media to focus on the “legality” of the undocumented, and opposing any legalization program as an undeserving “amnesty.”

The leaders of this side of the debate have a simple solution: close the borders.  We’re being invaded, they argue.  Mexicans are trying to “reconquer” the United States.  Foreigners are displacing American workers, or, as Lou Dobbs likes to say, breaking into our country and stealing our jobs.  According to them, any more immigration threatens not only our culture, but the entire American way of life.

At the other end of the debate are supporters of lifting all border restrictions: if capital can flow freely across man-made borders, then why not people?  What’s keeping immigrant workers in exploitative conditions is their immigration status, they contend.  If employers did not have the ability to threaten immigrants with deportation, then immigrant workers would freely be able to exercise their labor rights, including their right to join and form unions.  The ultimate goal should be to ensure that workers who are coming into the United States are doing so through legal channels, and given that we cannot stop illegal immigration, the only way to accomplish that is to open the borders, which makes “legal status” moot.

In the view of the AFL-CIO, neither policy adequately protects workers’ rights, and therefore neither is the right answer.  The closed border position has only received support from marginal, extreme groups like Borders USA, VDARE, and FAIR commands little support among the general public.  It is a policy based on fear, ethnic stereotypes, and xenophobia, which divides workers and communities and is the enemy of solidarity.

The current conditions in the low-wage labor market—both immigrant and native-born, authorized and undocumented—make clear to us that an open borders policy is not the answer.  The U.S. government’s failure to enforce workplace standards has created a de facto open border in the United States, enabling corporations to reach around the globe and encourage workers to come to this country in search of jobs.  Formalizing an open borders policy would only play into the hands of corporations that would like nothing better than to treat workers as commodities.

The AFL-CIO’s answer to the “immigration crisis” is to reform immigration law in a way that places workers’ rights at the forefront and embraces traditional American values of fairness, equality, and opportunity.  Our approach has five core principles: (1) the law must provide a swift, practical, and inclusive mechanism by which all undocumented workers can regularize their status; (2) enforcement of labor laws must go hand-in-hand with enforcement of immigration laws;  (3) foreign workers must hereafter come into the United States with full and equal access to workplace protections, which means that future flow needs should not be met by temporary worker programs; instead, Congress should reform the employment-based permanent visa system to tie the number of visas available to real economic indicators; (4) all workers should be entitled to equal social protections; and (5) civil liberties must be preserved and protected.

Rather than simply open the border, we believe that the current immigration system should be restructured to reflect economic realities.  The number of people allowed to immigrate lawfully to United States was set by Congress more than ten years ago, and is based on a system of arbitrary caps that are the product of political compromises.  Under the current employment system, the United States allows 140,000 workers into the United States every year, including 5,000 unskilled workers, 10,000 religious workers, 40,000 professionals with advanced degrees, and others in equally random numbers.  Instead of these arbitrary caps, we propose linking the number of visas available to real economic indicators.  If the meatpacking industry could show a long-term labor shortage in a particular year, for example, and a meatpacking employer could show that it has been unable to find workers—despite real recruiting efforts—then that company should be able to hire the demonstrated number of foreign workers it needs.  The key to protecting U.S. labor standards is that the new foreign workers should come in with full rights.

An open borders policy does not guarantee workers full rights.  While all new workers would be “legal,” those workers would face the same obstacles that prevent workers today from exercising their rights, and which are continually lowering labor standards: the absence of a viable system of labor inspection, legal, and practical barriers that workers face when trying to exercise freedom of association, and the erosion of the social safety net, especially for immigrants.  Removing the disability caused by being “unauthorized” alone does not guarantee that labor standards will be preserved.

Advocates of open borders ignore this part of the equation, often pointing to the European Union (EU) experience as evidence that easing border restrictions does not necessarily lead to the lowering of wages and other standards in receiving nations.  That experience, in fact, makes clear that the United States is simply not ready for an open borders policy.  Before creating the single market and providing for the free movement of people in that market, the EU countries created strong social safety nets. The United States has moved in the opposite direction.

I believe that a discussion about open borders has to be based on reality.  By that, I do not mean the political reality of whether an open borders policy is likely to become law any time soon, because that would be the end of the analysis.  Rather, I suggest that an open borders policy must consider the reality of what it would mean for workers, both foreign and native born, if it were implemented today.

First, if we assume that workers arriving in the United States under an open borders policy would mirror the current “illegal” flow—which is an assumption that the proponents of open borders do not dispute—we can safely conclude that workers are going to find jobs in the growing low-wage sector, which includes agriculture, construction, child care, health care, retail, building services, hospitality, meatpacking, and poultry, and that most workers will come from Mexico, Central America, the Caribbean, and South America.  The presumption of open borders advocates is that workers coming into these sectors will be able to work in decent conditions, unlike the current immigrant worker population, because the new workers will not be “undocumented.”

Unfortunately, however, the reality for workers in the low-wage labor sector generally is that the issue of immigration status is just one of many factors keeping them in substandard conditions.    Even if employers lost the ability to hold workers’ immigration status over their heads, the hundreds of thousands of new workers would surely face the same type of exploitative conditions that all workers in the low-wage labor sector face today.

Of course I am not suggesting that the issue of immigration status should be ignored.  To the contrary, the AFL-CIO has been strongly advocating for a swift, practical and inclusive legalization program for the current undocumented population and for reform of the current immigration law in a way that guarantees full labor rights for future workers.  It is important to recognize that exploiting immigration status is just one of the ways that employers repress worker rights.

To begin with, jobs in the low-wage sectors have long been defined by systemic violations of wage-and-hour and other employment laws.  The last time that the U.S. Department of Labor (DOL) conducted an industry-wide compliance investigation, in 2000, it determined that the poultry industry was 100 percent out of compliance with the Fair Labor Standards Act (FLSA).  DOL investigations in the garment sector, agriculture, and construction also revealed massive, across-the-board violations of wage and hour laws.

Instead of implementing any viable mechanisms to remedy these systematic violations, the DOL simply ignored them.  Over the past three decades,  and especially in the past six years, the number of businesses covered by the FLSA has increased significantly, while the DOL’s budget for wage and hour enforcement has decreased significantly, as have enforcement actions.  Today, there is one labor inspector for every 110,000 workers covered by the FLSA.

The reality is that there is no viable system of labor inspection in the United States today.  The Bush DOL has essentially abandoned its enforcement role.  That is no accident.  In fact, U.S. Labor Secretary Elaine Chao has openly abandoned random audits and other affirmative enforcement programs in favor of “compliance assistance” programs, which consist of educating employers about their obligations under the laws that the DOL enforces.               The situation of workers in the Katrina reconstruction effort is instructive here because it serves as a blueprint for what new workers who arrive after we open borders are likely to face.   The Gulf Region has been flooded with new workers who are laboring in substandard conditions.  As soon as the Bush administration let out billions of dollars in contracts for the effort, tens of thousands of men and women, mostly immigrants, from Mexico, Guatemala, Cuba, the Dominican Republic, and Brazil arrived in the Gulf Coast, lured by advertisements of abundant work.  Workers, both documented and undocumented, migrated to the Gulf coast from Maryland and Mexico and points in between.  Mary Bauer, director of the Immigrant Justice Project at the Southern Poverty Law Center in Alabama, estimates that there are at least one hundred thousand foreign-born workers now working in the Gulf region, as compared to a few thousand before Katrina.

What workers found was work at substandard wages, performed under a maze of subcontracting schemes.  As Cynthia Cooper explained for In These Times,  “Corporations with government contracts hide behind layers of invisibility, hiring subcontractors who hire other subcontractors—a frayed rope ladder reaching down to the workers.”  The result has been massive and systematic worker exploitation.

Not surprisingly, the DOL has looked the other way.  Its Gulfport Office’s wage and hour division has only two employees for the entire region, only one of whom speaks Spanish.  The agency has failed to pursue litigation against joint employers  that is, all employers in the contracting chain  even though the FLSA plainly allows it to do so.  In the small number of cases it has pursued, it has often accepted minimal settlements (in the hundreds of dollars), on behalf of individual workers (refusing to file class actions), a disgrace given who is ultimately controlling the work: KBR, a subsidiary of Halliburton, and Bechtel, Inc., who have each received billion dollar contracts.

Enforcement of labor standards in the Gulf Coast has been left to workers themselves, which has led to what Jennifer J.  Rosenbaum, an attorney with the Southern Poverty Law Center, calls “chronic retaliation.”  As Ms. Rosenbaum testified before the House Domestic Policy Subcommittee, Committee on Oversight and Government Reform last summer:

When workers have requested their unpaid wages or complained about conditions, they were threatened or worse.  Our office has spoken with dozens of workers who suffered retaliation when they simply asked to be paid: some were physically assaulted; some were threatened with guns; some were threatened with deportation; some were fired from their jobs; and some were blacklisted from future employment.  Contractors routinely told workers that if they were to participate in a complaint or lawsuit, those workers would never work for the company again.

It is important to note that the threat of deportation is just one of the many threats that employers have made in order to keep workers from exercising their rights.  With the greater supply of cheap labor, and the present lack of labor rights enforcement, employers could be expected to continue to threaten physical assault, firings, and blacklisting if we simply opened the borders.

Given the absence of a viable system of labor inspection, workers are left with two established mechanisms of enforcing labor standards: complaint-based enforcement actions and collective bargaining.  Under current conditions, neither option is within the reach of the workforce that is likely to arrive into the United States as a result of an open borders policy.

A workers-complaint driven system has proven particularly ineffective for foreign-born workers, who face serious barriers to complaining to DOL or accessing the courts, including language and lack of knowledge about U.S. labor and employment laws.  Private lawsuits are simply not an option for most workers in the low-wage labor market because they lack access to affordable legal representation.  Simply opening the borders (and thus removing “undocumented status” from the list of obstacles) does nothing to remove the multiple other barriers.

The other option available to workers is collective bargaining.  Many have argued that “legalizing” workers, no matter what the conditions of that legal status, including by opening the borders to all, will encourage labor organizing.  That argument ignores reality, which is that even native-born workers in the United States right now do not have the ability to form and join unions because the law,  in both theory and practice, strongly deters freedom of association.  It is certainly unlikely that new workers would be able to overcome the barriers to organizing that workers face in the United States today.

The United States’ hostility to unionization is nothing new.  Over twenty years ago, Theodore J. St. Antoine, one of this country’s most noted labor law scholars, observed, “The intensity of opposition to unionization which is exhibited by American employers has no parallel in the western industrial world.”  John Logan, an expert on labor relations at the London School of Economics, observed, “No other country in the world has spawned a thriving union avoidance industry, whose mission is to crush workplace organizing campaigns through employer harassment, intimidation, and reprisals.”

According to Human Rights Watch, “Workers’ rights violations in the United States are widespread and growing.  The NLRB used to devote most of its work to running elections for workers to choose or reject representation.  Now the bulk of the agency’s work involves unfair labor practices, most having to do with employers’ violations of workers’ rights.”

Official government data paint a stark picture of the obstacles American workers face when they choose to exercise their right to freedom of association.  James Brudney, professor of law at Ohio State University, said of NLRB statistics:

“[they] demonstrate that discriminatory conduct against employees increased at an astounding rate between the late 1950s and 1980; this remarkable pattern of employer misconduct persists in robust form today.  By 1990, there were incidents of unlawful termination in fully 25% of all organizing campaigns: one out of every fifty union supporters in an election campaign could expect to be victimized by such conduct.  A more recent study estimated that by the late 1990s, one out of every eighteen workers who participated in a union organizing campaign was the object of unlawful discrimination.  It is also notable that over the past two decades, employers’ unfair labor practices have become more heavily concentrated in mid-size and larger establishments, where union election win rates remain substantially lower.”

Intimidation and threats of deportation are just two of the many tools in the union busters’ arsenal.  Most union avoidance mechanisms have nothing to do with abusing workers’ immigration status: threats of a full or partial shutdown of the workplace if the union effort succeeds, illegal changes to wages, benefits, and working conditions, bribes to those who oppose the union, and electronic and other means of surveillance to spy on union activists are all too common.  Even after workers successfully form a union, in one third of the instances employers do not negotiate a contract. These statistics make clear that simply opening the borders will not bring either new or existing workers any closer to freedom of association in the United States.

Another significant barrier to implementing an open borders policy at this time is rising anti-immigrant sentiment, which has been shaping public policies for more than a decade, long before the September 11 terrorist attacks.   Until 1996, U.S. public policy was designed to provide equal social protections for legal immigrants and native-born citizens alike.  In 1996, two pieces of legislation were signed into law that stripped the protections of our social safety net for immigrants.  The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) made lawful permanent residents arriving after the act’s enactment ineligible for all federally funded means-tested benefit programs for five years.  It thus cut off millions of workers from the social safety net.  The Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) is a collection of harsh reforms: it bans Social Security benefits for undocumented workers and authorizes states to limit public assistance to immigrants. Professor Rogers M. Smith of the University of Pennsylvania notes that “these policies made it more likely that aliens would take any sort of employment on any terms offered.”   In other words, restricting benefits to an entire class of persons has put downward pressure on wages and other working conditions.  It follows that substantially growing that class of workers (as an open borders policy would do, by definition) would exacerbate those negative effects.

The recent debate over the State Children’s Health Insurance Program (SCHIP) makes clear that anti-immigrant sentiment is very much alive, even in the mainstream.  Among other things, that program would restore benefits to children who are U.S. citizens who were left out of the system after Congress added onerous documentation requirements— namely, a certified U.S. birth certificate, that many U.S. citizens simply could not produce.  The anti-immigrant right wing, led by Congressman Tom Tancredo of Colorado, led an attack on the program claiming that the SCHIP would allow “illegal aliens” to receive public benefits.  Even though Republicans were unable to substantiate their claims that undocumented persons have been claiming public benefits, and despite the fact that their claim that SCHIP provides benefits to undocumented persons is patently false, the program was nonetheless derailed, largely because of the immigration issue.

Taken together, these factors—the lack of a system of labor inspection, barriers to private enforcement of labor and employment laws, lack of freedom of association, and an increasingly hostile attitude toward immigrants—spell disaster for the workers who would be arriving across our open borders.  In short, an open borders policy would simply feed workers into an unregulated labor market with no safety net.  That policy benefits no one but the multinational corporations who would finally be able to treat workers as they have been fighting to do: as commodities.

It will take at least a decade, some say a generation, to reverse the U.S. economic, labor, social, and immigration policies that have left all workers in the United States in peril.  Until we have made substantial progress, it is simply irresponsible to advocate for an open borders policy.

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