EMPLOYER SANCTIONS - THE POLITICAL ECONOMY OF UNDOCUMENTED IMMIGRATION IN
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
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
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
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
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
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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