Author: Jennifer Gordon

Jennifer Gordon is a professor of law at Fordham University, where she teaches immigration and labor law. She is the author of Suburban Sweatshops: The Fight for Immigrant Rights (2005) and can be reached at jgordon@law.fordham.edu.

CITIZENS OF THE GLOBAL ECONOMY: A Proposal to Universalize the Rights of Transnational Labor

Unions in the United States have made great strides toward viewing immigrants already in this country—documented or not—as part of the labor movement. But what labor’s position should be on immigrant workers yet to come has proven a much harder question.

For the better part of the last century, most unions advocated restrictionism, on the theory that wages would be higher with less competition for work. Troubling as it is from a global perspective, this might make sense from the point of view of native workers—if restrictionism predictably translated into a meaningful reduction in the number of new arrivals. Yet for the past twenty years at least, despite restrictive immigration policies and increasing funds for border control, hundreds of thousands of low-wage labor migrants have poured into the United States annually, most of them undocumented.

In a globally interconnected and vastly unequal world, so long as there is low-wage work on offer in the United States, large numbers of people will continue to migrate to take those jobs. If an ongoing flow of new immigrants is unavoidable, the real question for labor advocates is how to restructure low-wage labor migration so that it supports—rather than undermines—the rights of all workers, and their ability to organize together to fight for better working conditions. This article sets out one proposal—Transnational Labor Citizenship—that would link migrants with unions, worker centers, and advocates before they even left their home countries, and tie the right to migrate for work to a commitment by migrants to report violations of baseline workplace standards in the U.S. It also explores other forms of “mobile labor citizenship” emerging from union experiments around the world today.

The Labor Movement’s Current Position on Future Flow

The two major United States labor federations were, until recently, deeply divided over the “future flow” issue. The conflict surfaced most publicly in the immigration debate in the years following labor’s 2005 split, when the AFL-CIO rejected the idea of temporary immigration programs, while Change to Win unions—such as the Service Employees International Union—called for some form of short-term program as an alternative to ongoing undocumented migration, and as a bargaining chip to offer the business lobby in exchange for its support of legalization. In 2009, with comprehensive immigration reform off the table in Congress for the time being, the federations negotiated a compromise, calling for the government to create an independent commission to assess labor market shortages and, in response, determine how many immigrants to admit. The accord rejects the idea of creating any new temporary worker programs or expanding existing ones.

While the joint position is important in allowing labor to move forward with the appearance of a united front on this issue, the stickiest issues remain to be addressed. Unless U.S. labor market shortages can be established with precision, labor migration is effectively directed to respond to those shortages, and the border is controlled to keep out unwanted arrivals, a commission is unlikely to have much impact. From today’s perspective, none of this seems readily achievable. In its current formulation, the commission’s calculations would not take into account the conditions in origin countries that lead people to leave in search of work. Yet continued migration from Mexico to the United States in the face of the worst recession in eighty years testifies to the power of these push factors and the limits of unilateral efforts at control. Although undocumented immigration has declined since the downturn hit, some 175,000 people each year still cross the border illegally from Mexico, and few of those already here have left.1

The accord would grant migrants full rights on paper, a critical starting point. Still to determine, though, is how to ensure that those who enter have an incentive to demand those rights, and the support and protection they need to enforce them effectively, so that labor migration does not undermine decent work.

Our Current Low-Wage Labor Migration System

If decent work is the measuring stick, the United States’ current approach to filling its low-wage jobs through undocumented immigrants and a smattering of guest workers is a miserable failure. In the U.S., a large proportion of the lowest-wage jobs is carried out by undocumented immigrants, whose numbers have fallen little from their 2007 estimated high of nearly twelve million despite the global economic crisis. These workers have been terrorized by a policy of workplace raids and arrests. Far from preserving decent work, immigration law impedes the enforcement of labor law in low-wage workplaces. Although many in the labor movement hoped that employer sanctions would protect the jobs and working conditions of U.S. workers when unions threw their weight behind them in 1986, sanctions—which make the employer responsible for checking that employees have the right to work in the U.S.— have turned out to make the enforcement of workplace rights much harder. Sanctions were the rationale offered by the Supreme Court to justify its ruling in a 2002 case, Hoffman Plastic, that undocumented workers who are fired or discriminated against for their union support have no right to back pay under the National Labor Relations Act. And although the law grants the undocumented the right to minimum wage and other basic workplace protections, employers conveniently forget about the need to check working papers until undocumented workers report wage theft or unsafe working conditions, and then use employer sanctions as an excuse to fire them.

Approximately two hundred thousand additional migrant laborers enter annually on temporary visas, as “guest workers,” to do low-wage seasonal and agricultural jobs. These workers are tied to a single employer for the duration of their visa. A guest worker is a captive employee who cannot leave a bad job for a better one. Although guest workers, too, have rights on paper, if they complain of abusive treatment, they risk not only deportation but inclusion on an unofficial blacklist that effectively bars their return.

The incentives our current labor migration program creates—to keep quiet about abuse, to keep working whatever the demands—are exactly the opposite of what they should be. The price for this state of affairs is paid not only by migrants, but by native-born and long-time resident workers. Over the past twenty years—in janitorial, residential construction, restaurant, meat processing, and other low wage industries—unscrupulous employers have been able to speed up production, reduce pay, increase work hours, and fight unionization because they can rely on vulnerable immigrants to take the degraded jobs that native workers are no longer willing to do.

Over the past three decades, the federal government has withdrawn resources from workplace inspections and enforcement. As the floor on labor standards collapsed into the basement, all low-wage workers suffer, immigrant and native-born alike. Under the leadership of Hilda Solis, the Department of Labor has taken heartening steps toward enforcing the minimum wage and other workplace standards. But the distorting effect of immigration law on workers’ rights still remains to be addressed. Without immigration reform to legalize the undocumented, and an approach to the future flow of low-wage labor migrants that has workers’ rights at its core, the downward spiral in working conditions at the bottom of the ladder will continue.

An Alternative Proposal: Transnational Labor Citizenship

What is the alternative? How might low-wage labor migration look if it were structured around the idea that all workers are “labor citizens,” wherever they are and whatever their immigration status, and built on principles of solidarity and workers’ rights? Transnational Labor Citizenship is an effort to answer those questions in concrete terms.

Imagine that the United States agreed to admit migrants on the condition that they join a network of workers’ organizations here and in their home countries—a sort of transnational union. Once admitted on such a visa, migrants could work here legally, and would have the freedom to move between jobs and employers. They could stay as long as they could find work, and come and go as often as they liked. What migrants would give in return is a promise to refuse jobs that violated workplace standards and to report any employer who undercut the law. Failure to adhere to these requirements would be grounds for removal from the membership in the transnational labor organization and withdrawal of the visa. This is the Transnational Labor Citizenship proposal. Transnational Labor Citizenship would break the link between a would-be migrant and a sponsoring employer, a tie that facilitates so much of the exploitation that guest workers suffer. Instead, it would make the enforcement of workplace rights, and the solidarity necessary for worker organizing, central to the very structure of labor migration.

To support migrants in keeping their promise, the U.S. and origin country-based transnational labor organizations would work intensively with migrants on the ground, collaborating across borders to defend the rights of their members through a combination of government enforcement, lawsuits, and collective pressure. The groups would be linked to create a network with a presence both in origin countries and the United States, with a mission of raising the floor on wages and working conditions for all workers. In the United States, both unions and worker centers (the over 170 non-profit organizations around the country that combine workplace organizing, advocacy, and services, often based in immigrant communities) would be an integral part of this strategy. Potential allies abroad would vary by country and industry. Finding independent and democratic workers’ organizations to partner with in some countries would not be easy. But as the section that follows illustrates, there are many places in which transnational organizing collaborations are not only imaginable, but already underway.

Transnational Labor Citizenship would extend the labor movement’s existing commitments to global labor solidarity. Many unions have already come to understand the need to collaborate across borders to hold mobile capital accountable, with unions in different countries working together to pressure transnational firms as they play off workers against each other. Transnational Labor Citizenship asks that we recognize migration as an aspect of globalization that requires its own kind of transnational solidarity, in order to strengthen the hand of migrants themselves as they cross borders, with the goal of building mobile workers’ capacity to defend their rights.

Recent Union Experiments with Mobile Labor Citizenship

Although we are very far from Transnational Labor Citizenship in the U.S. today, more and more unions around the world are beginning to experiment with ways to organize migrants across borders, so they can remain in a union wherever they are. (A few non-profit organizations—most notably the Centro de los Derechos del Migrante and Global Workers Justice Alliance—also facilitate transnational advocacy to make it easier for migrants to pursue legal claims against their employers.) These efforts see “labor citizenship” as something inherent in all workers. They seek to make labor citizenship real by supporting migrants in their efforts to defend their rights in ways that remain accessible and relevant whether migrants are at home or abroad.

On one front is the recent interest among Global Union Federations (GUFs) in the concept of a “union passport.” The Building and Wood Workers’ International (BWI) recently launched its Migrant Workers Rights Passport, the International Union of Food and Allied Workers has breathed new life into its longstanding International Union Card, and the professional and commercial service workers GUF—Union Network International (UNI)—has developed a UNI Passport. With such a document, the idea goes, a migrant who is a union member in her origin country could be recognized as a member by a union in the same GUF in her destination country.

These passports reflect a new recognition on the part of GUFs—long committed to solidarity in the sense of holding transnational capital accountable—that the time has come to consider the needs of transnational workers as well. As symbolically appealing as they are, however, such passports are practically limited. Migrants often work in different industries at home and abroad, while GUFs are limited to one sector (and indeed, in the United States, many unions do not belong to GUFs at all). Where migrants do remain in the same industry after they move, union structures often do not permit individuals to become members if the union does not represent their workplace, passport or not. Even if that obstacle could be overcome, GUFs have not yet worked out a mechanism for funding services and benefits to new migrant members in the destination country, much less a response to the nativism that would likely greet such a program if implemented on a large scale.

Partnerships between specific origin and destination country unions around the world are delivering more concrete results. A few examples from the construction industry illustrate the range of experiments underway.

The International Labor Management Alliance (ILMA)—a non-profit founded in 2006 with the support of construction unions, unionized employers, and labor-management programs in both destination and origin countries2—has piloted a protocol for hiring union construction workers from origin countries when there is a labor shortage among unionized construction workers in a destination country. Its test run took place in 2008, when two hundred members of Brazilian and Argentine welders’ unions traveled to Alberta, Canada on temporary visas to work on unionized construction jobs in the oil sands petroleum industry. Canadian unions trained the workers to local standards. The workers were paid at full union scale for their labor; dues and the cost of services were shared by both unions. In this model, “mobile labor citizenship” is offered to relatively few workers, but those who are included enjoy uninterrupted union membership with full benefits, whether they are at home or abroad.

The BWI’s Asia-Pacific Migration Project illustrates an approach with broader impact (although more diffuse benefits). The Project encourages the development of active partnerships between origin- and destinationcountry BWI affiliates in order to organize migrants together with local workers. These collaborations are not solely—or sometimes even primarily—focused on unionization. Most include worker education, legal representation, public protest, and policy interventions at the local, national, and international levels. And the majority target their rights education efforts and offer their legal representation to all migrant workers in their industries, not just to members or even potential members.

Some BWI affiliates have negotiated cooperation agreements between unions in origin and destination countries. The first agreement was signed in March 2007 by BWI affiliates in Nepal (an origin country) and Malaysia (a destination country). Shortly after the agreement was finalized, the Malaysian union trained a migrant worker from Nepal to work as an organizer in Malaysian timber plants. With his help, the Malaysian union organized ten new companies the following year, and now counts fifteen hundred migrants among its ten thousand members (compared to a negligible number before the initiative went into effect). BWI affiliates have also experimented with establishing a migrant local in a destination country. In 2007, for example, with support from Nepalese and Hong Kong unions, and from BWI, Nepalese construction workers in Hong Kong founded the Nepalese Construction Workers Union, affiliated with the Hong Kong Confederation of Trade Unions.

The possibilities for origin- and destination-country union collaborations have been most thoroughly explored in countries where a national labor federation is strongly committed to cross-border solidarity and migrant organizing. Nepal is an example of an origin country with such a federation. The General Federation of Nepalese Trade Unions (GEFONT) has been providing supporting to Nepalese migrants in Asian countries since 1993. It began by organizing committees of Nepalese migrants in Hong Kong, Korea, Malaysia, India, and elsewhere, and then sought trade union partners in those destination countries with which the migrants could affiliate. GEFONT gives membership cards to participating migrants, so even as they organize into destination-country unions they gain a formal affiliation with the Nepalese labor movement (although dues only go to the destination union). GEFONT and its member unions now have active partnerships with Hong Kong, Korean, and Malaysian unions. GEFONT has also established a Migrant Desk in Nepal so it can provide services to migrants who return after having been injured at work or cheated by an employer or a recruiting agency abroad.

In Korea, a destination country, the Korean Confederation of Trade Unions (KCTU) has systematically sought out relationships with unions in origin countries. Not surprisingly, given each group’s commitment to migrant organizing, KCTU’s collaboration with GEFONT has been strong. The two federations have worked together to encourage undocumented Nepalese migrant workers to join Korea’s pioneering Migrants’ Trade Union, a KCTU affiliate. KCTU and GEFONT have jointly pressured the Korean and Nepalese governments to incorporate migrant protections in the recently-signed Memorandum of Understanding on temporary labor migration between those countries, which sought to address onerous requirements for the available visas and educated migrants about their rights.

Transnational migrant organizing efforts are underway outside of the construction industry as well. In the context of U.S. agricultural work, the Farm Labor Organizing Committee and the United Farm Workers have both sought to build bases for organizing within Mexico. Within the European Union (EU), unions in the fifteen pre-2004 EU countries have started to explore the possibilities for collaboration with their counterparts in ten new Eastern and Central European member states, as EU enlargement begins to require free movement of workers between those countries. Domestic work has been a particularly active field for such collaborations, particularly in Asia. For example, since 2005, Hong Kong has been home to a unique experiment in mobile labor citizenship. The Alliance of Progressive Labor (APL)—a Philippine labor federation committed to social movement unionism—has placed two of its organizers in Hong Kong to build a Philippine domestic workers union into a political base for migrants in Hong Kong and for the APL and Akbayan (the political party with which the APL is associated in the Philippines). In addition to organizing women in Hong Kong, the APL continues working with them when they travel back home.

While none of these efforts restructure the legal rules of labor migration, all share the goal of making sure that migrants travel across borders as labor citizens—which is also the central goal of Transnational Labor Citizenship.

Going Forward

Comprehensive immigration reform is stalled, and it is not clear when or if Congress will resume debate on a full package of enforcement, legalization, and future flow programs. Congressional inaction has created a dangerous vacuum that is fast being filled by xenophobic initiatives like Arizona’s S.B.1070. Perhaps the only upside of the lull is that it gives the labor movement and its allies the chance to flesh out alternatives. Full adoption of the Transnational Labor Citizenship proposal in the United States may not be likely in the near future. But the proposal’s core principle—that until workers’ rights are central to how we structure labor migration, decent work will continue to be undermined—urgently demands our attention.

If the idea of a labor commission gains political momentum, there is much that could be done to shape the policies the commission implements to ensure that migrants enter the country as labor citizens, with the ability to uphold the rights granted to them on paper. It will be essential to make sure that any temporary labor migration program avoids the perils of the past. Most importantly, migrant visas cannot be tied to the whims of an employer: workers must have the right to change jobs or they will remain little more than bonded servants. New policies could create a concrete role for workers’ organizations in supporting temporary migrants. For example, migrants admitted through a commission could come in as associate members of U.S. worker centers and/or unions, with the support of a transnational advocacy network to defend their rights. Even without wholesale reform, existing policies could be retooled: Congress could roll back the Hoffman Plastic ruling, and it could expand the number of “U” visas for immigrants who report crimes, which have recently been made available for some workplace violations.

Such legal reforms would represent an important step forward for immigrants already here. And few disagree that any labor migrants we admit in the future must have equal rights with U.S. workers. The question is how to make paper rights into real ones. Workplace rights do not enforce themselves—they must be claimed by workers who have the support they need to come forward, both individually and collectively. The time has come to think about labor migration from a global labor solidarity perspective. Once low-wage migrants are admitted through an immigration system that does not punish those who speak up and supported by a transnational approach to organizing, they will be able to act as the labor citizens they are.

 

Notes:

1. Regarding inflows, see Michael Fix, Demetrios G. Papademetriou, Jeanne Batalova, Aaron Terrazas, Serena Yi-Ying Lin, and Michelle Mittelstadt, Migration and the Global Recession (Washington, D.C.: Migration Policy Institute, September 2009), available at www.migrationpolicy. org/pubs/MPI-BBCreport-Sept09.pdf. Regarding resident populations, see Michael Hoefer, Nancy Rytina, and Bryan C. Baker, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009 (Washington, D.C.: Department of Homeland Security, January 2010), available at www.dhs.gov/xlibrary/assets/statistics/publications/ ois_ill_pe_2009.pdf (estimating 11.8 million undocumented residents in 2007; 10.8 million in 2009)

2. These descriptions are drawn from Jennifer Gordon, “Towards Transnational Labor Citizenship: Restructuring Labor Migration to Reinforce Workers Rights” (policy paper, The Warren Institute, UCBerkeley, 2009), available at www.papers. ssrn.com/sol3/papers.cfm?abstract_ id=1348064. All citations to my interviews with organizers and union leaders involved in these efforts, as well as fuller descriptions and additional sources, can be found there.