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EMPLOYER SANCTIONS - THE POLITICAL ECONOMY OF UNDOCUMENTED IMMIGRATION IN THE U.S.

By David Bacon

OAKLAND, CA (5/13/01) - From the introduction of the original Simpson-Mazzoli Bill in the mid-1970s, the key provisions of U.S. anti-immigrant legislation have been directed at undocumented immigrants. At their heart are employer sanctions, which finally became Federal law as a result of the Immigration Reform and Control Act of 1986. The law requires employers to keep records of workers' immigration status, and imposes fines (low and rarely collected) on those who hire the undocumented. The real impact of the law is on workers, making it a crime for those without documents to hold a job.

This watershed action codified the creation of a special category of residents of the United States who have significantly fewer rights than the population as a whole, who cannot legally work or receive social benefits.

The creation of this special category has had widespread ramifications. It has influenced the wage levels and vulnerability of immigrant labor. It has spawned other proposals for the denial of rights, such as the right to education or medical care. The original premise that undocumented immigrants have no right to work or earn a living has been broadened to include the denial of rights to most other basic elements of normal life, including the right to be a part of a community. It has led to the demonizing and dehumanizing of undocumented immigrants in public debate and political life.

In the years which followed the passage of the Immigration Reform and Control Act, dozens of anti-immigrant bills were introduced, first into the California state legislature, and then into legislatures in other states.1 In 1994, California voters passed Proposition 187, an extreme measure to disqualify undocumented immigrants from education and health care services. Again other states took up similar measures. In the spring of 1996 Congress debated and passed some of the most extensive and repressive immigration legislation in its history. Predictably, what started as an attack against the most vulnerable group of immigrants, the undocumented, was broadened into a generalized campaign to cut legal immigration quotas, and disqualify even permanent legal residents from a wide variety of social benefits.

In the face of this onslaught, groups which traditionally defended the rights of immigrants in the U.S. became divided over the need to defend the rights of the undocumented. Many argued that, although legal immigration has socially beneficial effects, the entry of undocumented people into the U.S. has a negative effect on society. The logic reduced the argument about undocumented immigration to one over tactics for suppressing it. Is it better to halt or control it by denying medical care and education for undocumented children, or by prohibiting undocumented immigrants from working, or by militarizing the border, or by increasing the number of Border Patrol raids and deportations?

But in what sense is undocumented immigration a problem? The Urban Institute estimated in its May, 1994 report, Immigration and Immigrants, Setting the Record Straight, that the undocumented population of the U.S stood between 2.5 and 3.5 million people in 1980, and rose to between 3 and 5 million just before the passage of the Immigration Reform and Control Act. After IRCA's amnesty program, which allowed undocumented people to normalize their immigration status, the population fell to 1.8 to 3 million, and had risen to 2.7 to 3.7 million by 1992, roughly the same level it was 12 years earlier.7

That number continued to rise during the 1990s, and according to census figures today stands at as many as 9-11 million. This is the description of a stable process and section of the U.S. population, both in terms of relative size and constancy. This undocumented population constitutes about 1-2 percent of the total population of the country.8 The fact that this same phenomenon exists in other developed countries argues that undocumented migration is in fact a stable process on a global scale, and that its origins lie in the grossly (and increasingly) unequal distribution of the world's wealth.

Migrant Watch International estimates that 130 million people in the world live outside their countries of birth. Neoliberal economic reforms and the transfer of enormous wealth from developing to developed countries makes survival impossible for millions of people in their home countries. Many cope by migrating to places with greater employment possibilities and higher standards of living. U.S. investment in Mexico (the source of most migrants to the U.S.), and the low-wage economic climate fostered by the governments of both countries, push people north along with repatriated profits. Under the rules of free trade, profits and investment have free passage across the border, but people don't. Far from being a social drain, the presence of undocumented people makes a net positive contribution to the U.S. economy. According to the National Immigration Forum, undocumented immigrants pay about $7 billion annually in taxes. Some taxes paid by the undocumented, including $2.7 billion annually to Social Security, and $168 million into state unemployment benefit funds, are direct subsidies to these systems, since undocumented workers cannot by law collect any benefits for their contributions.9

In the state of California alone, which accounts for about 43 percent of the nation's undocumented population, undocumented immigrants pay an additional $732 million in state and local taxes, in addition to federal payroll and social security taxes. The state, in turn, according to the Urban Institute, spends $1.3 billion on education for undocumented children, and $166 million for emergency medical care for their families (the only kind of state-provided medical care for which they qualify.) It is difficult to make the case that expenditures on the education of undocumented children, or on emergency medical care for their families, is a net economic drain, given the gross overpayment of benefits in many other areas.

The creation and elaboration of the special status of undocumented immigrants is not economically neutral. Undocumented migration is the source of enormous profit in industries dependent on the labor of workers without papers.

According to a UCLA study from the mid-1990s, undocumented workers contribute approximately 7 percent of the $900 billion gross economic product of the state of California, or $63 billion. The Urban Institute estimated at the time that California accounts for 43 percent of the nation's undocumented population, or about 1.4 million people. The gross economic contribution by each undocumented immigrant to the California economy was therefore about $45,000, including children, the unemployed, and those too old or ill to work. While no statistical surveys have determined the average wage of undocumented workers, their precarious status keeps their wages near, and sometimes even below, the legal minimum, which at (then) $4.25 per hour equaled an annual income of $8840. It is clear that the labor of undocumented workers not only pumps tens of billions of dollars into the state's economy, but that the workers themselves receive only a small percentage of it, a much smaller percentage of the value which they produce than that received by workers who are either citizens or legal residents. That difference in the rate of exploitation is a source of extra profit for those industries which are dependent on a workforce made up largely of undocumented workers. The industries include agriculture and food processing, land development (including the residential construction and building services industries), tourism (including the hotel and restaurant industries), garment production and light manufacturing, transportation, retail trade, healthcare and domestic services.

U.S. immigration law has historically been used to drive down the price of immigrant labor in the U.S. Proposals for guest worker programs, put forward by agricultural, high tech, meatpacking, tourism, healthcare and light manufacturing interests show a clear economic self-interest. But even without guestworker programs, employer sanctions have played a central role in holding down the price of labor in these industries. In an economy in which whole industries depend on an abundant supply of immigrant labor, maintaining a subclass of undocumented workers with fewer rights and less access to benefits is an important source of profit. As sanctions have made that subclass much more vulnerable, the labor of the undocumented has become much cheaper for employers.

An undocumented worker, for instance, considering whether to organize a union to win better wages, has to take into account the possibility of being fired. Other workers also risk being fired in similar situations, an important obstacle to all union organizing efforts. But undocumented workers must also weigh employer sanctions in the balance. Sanctions make finding another job much harder and riskier. The period of unemployment is likely to be longer. Because sanctions also disqualify a fired worker from unemployment benefits, food stamps or other sources of income, a fired worker will be forced to take whatever job is available, at whatever wage. And under National Labor Relations Board rulings, if an employer shows that a worker fired for union activity is undocumented, they are not obligated to rehire her or him.

This same set of choices also confronts undocumented workers who consider filing complaints about unpaid wages, unpaid overtime, wages below the minimum, violations of health and safety laws, sexual harassment, and violations of other basic legal protections for workers. Worker protection laws exist on the books, but it is difficult, often even impossible, for undocumented workers to enforce them.

All those legal measures which are designed to make life unpleasant for undocumented immigrants, who presumably are therefore encouraged to leave the country, also make them more vulnerable and socially isolated. When it becomes harder and riskier for them to make demands for social services, or to assert their rights at work or in the community, the social cost and the price of their labor drops.

In the eyes of immigrants themselves, these proposals are a product not only of anti-immigrant sentiment, but are intended to maintain their second-class status. "We all have a right to work and eat," says Los Angeles sweatshop worker Dolores Alcala. "The immigration law is just trampling on all of us." Unions trying to organize immigrant workers agree. "Immigration law is a tool of the employers to keep workers unorganized," says Cristina Vasquez, regional manager in Los Angeles of the Union of Needletrade, Industrial and Textile Employees. "The Immigration and Naturalization Service helps them."

UCLA researcher Goetz Wolff documented falling wages among LA's immigrant industrial workers in the mid-1990s. In women's apparel, for instance, the average hourly wage fell from $6.37 to $5.62 between 1988 and 1993. UNITE estimates that 120,000 people work in LA's garment sweatshops, almost all of whom are immigrants, with a large percentage of undocumented. Falling wages are not just a problem for garment workers. Wages are falling in paper recycling, plastics manufacturing, textiles and food processing - all industries with a large undocumented workforce. "Our wages and conditions are very bad no matter what industry we work in," says immigrant garment striker Sara Callejas. By contrast, the average wage in aircraft production is over $20/hour. Even during the recession of the early 1990s, the wage rose slightly. Aerospace, a major industry in the Los Angeles basin, employs a mostly-unionized and native- born workforce.

The major factor in maintaining the vulnerability of undocumented labor is employer sanctions. Workplace enforcement of immigration law became the key element in the Clinton administration's overall immigration policy. In its ultimate expression, Operation Vanguard, the INS conducted checks of immigration documents at every meatpacking plant in Nebraska in 1999. Over 4700 workers were called in by agents, and 3000 left the plants. In Omaha, where a community organization, Omaha Together One Community, had made beginning steps towards organizing non-union plants, Operation Vanguard wiped out its rank-and-file organizing committee. Meanwhile, the administration transformed other government agencies into immigration agents as well. Even Department of Labor inspectors looking for minimum wage and overtime violations were required to check the I-9 forms used by employers to track immigration status, and report workers they suspected lacked documents. Sanctions justified the Social Security Administration's policy of sending letters to employers with lists of workers whose numbers didn't match the agency database. Those workers then were often accused of lacking documents and fired.

In 1986, the AFL-CIO pushed for the inclusion of employer sanctions in the Immigration Reform and Control Act. Its position rested on the idea that if it became illegal for the undocumented to work, fewer immigrants would come to the U.S., while those working here illegally would return home. The position, which reflected the federation's cold war, business union policies, created a color line. It sought to protect wages for native-born workers by excluding immigrants, rather than by organizing everyone, as the CIO and Wobblies had done. Sanctions did not succeed in halting the flow of migrants to the US, though they did undermine their rights once they were here.

Over the last decade, the organizing efforts of immigrant workers have become more important to unions. Last year, the percentage of U.S. workers belonging to unions dropped from 13.5 percent to 13.3 percent, and fell to 9 percent in the private sector. For the overall percentage to stay constant, unions have to organize 400,000 workers a year; to increase by 1 percent, they have to organize twice that number. The AFL-CIO recently proposed a goal of organizing 1,000,000 workers yearly, a rate not achieved since the 1940s.

Since 1986, it has become common for companies to use employer sanctions as a weapon to resist organizing drives. Recognizing this, in February of 2000 the AFL-CIO passed an historic resolution calling for the repeal of sanctions, and for a legalization program that would allow undocumented immigrants to normalize their status. As a result, the political rules and alliances that limited the possibility for immigration reform have also changed. Amnesty for the country's 9-11 million undocumented immigrants, which was off the radar screen in Washington just a few years ago, is now a realistic goal.

Over the last decade, immigrant workers have proven key to the labor movement's growth. In Los Angeles, the resurgence of union activism has largely rested on strikes and organizing drives among immigrant janitors and hotel workers. Immigrant carpenters, harbor truckers, garment workers, factory hands, and tortilla drivers have staged pivotal strikes and organizing drives. Immigrant day laborers, domestics and gardeners have built independent organizations, even without labor law protection and support from local unions. And LA is not an isolated case. As union activity among immigrant workers became a national phenomenon, the federation began to see that defending their right to organize was in its own self-interest. "Every period of significant growth in the labor movement was fueled by organizing activity among immigrant workers," Wilhelm says. "We're a labor movement of immigrants and we always have been."

In this labor upsurge, documented and undocumented workers participate on an equal basis, without distinction based on legal status. Unions seeking to build their strength through an alliance with this movement have to acquire a basic understanding of immigration law, to know how to help workers defend themselves against it. In this part of the labor movement, the defense of the rights of all immigrants, including the undocumented, has become a survival issue. Employers routinely use the threat of immigration raids to intimidate workers. Employer sanctions have provided companies with a legally unassailable way of conducting mass firings when they are faced with organizing activity. Since the law provides no remedy, unions have been forced to use community pressure, direct action and other tactics based more on the ideas of social movements.

In the eyes of many active and progressive unionists, this upsurge contributes new ideas and tactics and an increased sense of militancy. It helps ground unions in local communities, and is making them more democratic. Unions involved in this movement don't see the changing demographics in the workforce as a cultural threat, but as a source of new traditions and new strength.

With the election of the Bush administration, however, employers see new opportunities for the vast expansion of contract labor, guestworker programs. In January, Texas Senator Phil Gramm, previously an opponent of almost any form of immigration, announced that he would propose a vast expansion of bracero contract labor programs. "It is delusional," Gramm told reporters, "not to recognize that illegal aliens already hold millions of jobs in the United States with the implicit permission of governments at every level, as well as companies and communities." Gramm called for increased enforcement of employer sanctions, to force migrants into his contract labor scheme.

Mark Reed, former INS director in Dallas and author of Operation Vanguard, argues that "we depend on foreign labor, and we have to face the question -- are we prepared to bring in workers lawfully? How can we get unauthorized workers back into the workforce in a legal way? If we don't have illegal immigration anymore, we'll have the political support for guestworker." Nebraska's governor Mike Johanns a strong critic of Operation Vanguard for causing production bottlenecks in meatpacking plants, last year publicly endorsed a guestworker program for the industry. The AFL-CIO officially opposes contract labor programs, and calls for labor protections within those that already exist. But Wilhelm, who heads the federation's immigration committee, says, "I don't think it's possible to have labor protections for contract workers. To think the law will protect people whose right to stay in the country ends with their job is not living in the real world."

The conversion of Phil Gramm and at least part of the Republican right to the pro-bracero position actually clarifies the immigration debate. Gramm, the AFL-CIO, and immigrant rights activists agree on one thing: The choice to be made is not over what will or won't stop people from coming across the border, but over their status in the U.S. It's the age-old American dilemma: bondage (whether as slaves, indentured servants or braceros) or freedom (even if that still leaves workers with the need to organize and fight to improve conditions).

U.S. immigration policy will either move in the direction of removing sanctions and legalization programs to erase the distinction of the second-class status, or sanctions will become part of an even more codified contract-labor system. In that case, the second-class status will become even more deeply ingrained in the U.S. economy and society. In meeting this challenge, labor and immigrant rights advocates have to find ways of linking the struggle for equality and civil rights with other social movements with the same goals.

It is impossible to fight against the use of the undocumented as scapegoats for the problems of job flight and insecurity without calling for limitations on the ability of transnational corporations to move capital and production at will. Anti-immigrant domestic policies and free-trade policies abroad are interconnected and mutually supportive. Similarly, fighting for immigrant rights is connected to struggles to expand social services. Competition over declining resources can't be eliminated without demanding that all people share equal access to social benefits, and that the cost of the benefits be paid through taxes on corporations and the wealthy.

Fighting against competition over jobs means fighting for a full employment economy, instead of one in which hundred of thousands lose their jobs in corporate downsizing and layoffs, and high levels of permanent unemployment are treated as normal and necessary, especially in black and brown communities. When the movement for jobs and labor rights makes progress, both immigrants and non-immigrants benefit. The defense of the rights of immigrants is, in fact, part of a broader social struggle over the distribution of wealth, the protection of the rights of all working people and people of color, and the ending of all forms of social discrimination. It is a fight over political power.

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david bacon - labornet email david bacon
internet: dbacon@igc.apc.org 1631 channing way
phone: 510.549.0291 berkeley, ca 94703
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