Engineering - Civil Engineering assignment

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IMMIGRANT WORKERS AND THE FUTURE OF AMERICAN LABOR

Ruth Milkman1

Immigrant workers are at the vital center of recent efforts to rebuild the U.S. labor

movement. Low-wage workers from Mexico and Central America, including many who lack

legal status, were the protagonists of many of the nation’s most dynamic union organizing

campaigns starting in the 1980s and 1990s. In that same period, low-wage immigrants

were on the front lines of “worker center” organizing and advocacy efforts as well. The

21st century has also witnessed the emergence of a vibrant immigrant rights movement,

which is both a civil rights movement and a labor movement. All three types of immigrant

organizing and advocacy have infused the beleaguered U.S. labor movement with new

energy, new tactics, and new ideas.

Most immigrants come to this country with the goal of economic advancement, yet

newcomers who arrive with few resources often find themselves confined to the bottom of

the labor market, where wages are low, working conditions poor, benefits rare, and

opportunities for promotion extremely limited. Moreover, in many of the jobs in which

immigrants are concentrated, wage theft and violations of other longstanding labor

standards are endemic. Few workers are more “organizable” today than low-wage

immigrants, and campaigns that highlight the abuses to which they are subjected have

proven capable of enlisting the sympathies of the wider public – despite the fact that the

workers involved often lack legal status. Nevertheless, multiple obstacles stand in the way

of large-scale immigrant unionization, obstacles that deserve close attention in any future

1 Professor of Sociology, CUNY Graduate Center, and Academic Director, The Joseph S. Murphy Institute for Worker Education and Labor Studies, CUNY. Thanks to Laura Braslow for her able assistance in constructing Table 1.

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efforts to reform U.S. labor law generally, or the National Labor Relations Act (NLRA) in

particular.

Among the nation’s 155 million workers, about 24 million (16 percent) are foreign-

born.2 This group includes many professionals, entrepreneurs, and other high earners. At

the other end of the spectrum, about a third of the foreign-born labor force, or 8 million

workers, are unauthorized immigrants, most of them Latino. They are typically employed

in low-wage jobs in agriculture, construction, food and garment manufacturing, hotel and

restaurant jobs, and a variety of other low-wage service industries.3 Many legal

immigrants (some of whom lacked that status when they first entered the country) labor

alongside their unauthorized counterparts at or near the bottom of the labor market.

Others have secured more stable work with better pay and conditions, and that in turn

often motivates those stuck in the worst jobs to hope that they can do the same. Indeed it

is precisely such aspirations that fuel the new immigrant labor movement.

Over recent decades, the size of the immigrant workforce – and its unauthorized

component in particular – has grown steadily, until the current economic downturn. Given

the uncertain timing of any recovery as well as the political impasse that currently exists in

regard to comprehensive immigration reform, no one can predict the future size of the

nation’s foreign-born workforce with any precision. But it is difficult to imagine any

scenario in which low-wage immigrants, including those who presently lack legal status,

cease to be a significant element in the U.S. labor market. Even among advocates of

immigration restriction, few are proposing a wholesale expulsion of the estimated 11

2 These are 2009 figures, and include both employed and unemployed workers. See http://www.bls.gov/news.release/pdf/forbrn.pdf 3 Jeffrey S. Passell and D’Vera Cohn, “A Portrait of Unauthorized Immigrants in the United States,” Pew Hispanic Center Report, April 2009, available at http://pewresearch.org/pubs/1190/portrait-unauthorized-immigrants-states In addition to the 8 million unauthorized immigrants in the labor force, another 3 million are present in the U.S. but not in the labor force (including children).

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million persons who currently lack legal status. And although the previous influx of

unauthorized immigrants has come to a halt since 2007 as a result of the economic crisis,

the outflow has been exceedingly modest, and indeed the influx of legal immigrants has

actually increased slightly since the recession began.4 Moreover, the low-wage jobs in

which immigrants are concentrated are deeply entrenched in the U.S. economy; indeed,

many of them are jobs for which continuing growth is in the forecast.5 In short, the low-

wage immigrant workforce is here to stay.

The Dynamics of Immigrant Labor Organizing

Immigrants arrive in the United States with a strong desire to improve their

economic position; indeed, that is why most left their home countries in the first place.

Scholarly controversy continues over the extent to which the “selection hypothesis” applies

to today’s Latino immigrants (that is, whether migrants have higher skill levels than non-

migrants). 6 But in another, less technical sense, they are positively selected: once having

arrived in this country, most immigrants dedicate themselves – individually and

collectively – to the quest for economic advancement. Those who find themselves trapped

at the bottom of the labor market harbor strong ambitions to move up into mainstream

jobs where they can earn a living wage and where working conditions conform to basic

legal standards. This aspiration, and the obstacles blocking its fulfillment, has thrust

4 Jeffrey S. Passell and D’Vera Cohn, “U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade,” Pew Hispanic Center Report, September 2010, available at http://pewhispanic.org/reports/report.php?ReportID=126 5 In a 2009 report, among the 30 occupations for which the U.S. Bureau of Labor Statistics projected the largest employment growth over the decade beginning in 2008, eleven were typical low-wage jobs, listed as requiring only “short-term on-the-job training,” including many in which immigrants are overrepresented, such as home health aides, food preparation and serving workers, construction laborers, truck drivers, landscaping and groundskeeping workers, child care workers, and the like. See Table 6 of U.S. Bureau of Labor Statistics, “Employment Projections, 2008-2018 Summary,” (December 2009), available at http://www.bls.gov/news.release/ecopro.nr0.htm 6 For access to the debate over the selection hypothesis, and a finding that among non-college-educated Mexicans, immigrants on average have more schooling than non-migrants, see Daniel Chiquiar and Gordon H. Hanson, “International Migration, Self-Selection, and the Distribution of Wages: Evidence from Mexico and the U.S.,” Journal of Political Economy, 113:2 (2005): 239-81.

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immigrants onto the front lines of labor movement efforts to challenge contemporary

business strategies that are driving down pay, conditions, and living standards. And

insofar as such challenges target employer practices that concern U.S.-born workers as

well, immigrant workers’ demands for economic justice often captivate the hearts and

minds of the wider public, despite the countervailing reservoir of anti-immigrant

sentiments.

Today’s immigrant labor movement is comprised of three distinct strands. The first

involves traditional trade unionism. Although U.S. unions have a mixed record in relation

to foreign-born workers, often having supported restrictive immigration policies in the

past, that has changed dramatically in recent years. Starting in the 1980s, several leading

unions began to actively organize Latino immigrants employed in such low-wage sectors as

janitorial, retail, hospitality, residential construction and manufacturing. Ten years ago, the

AFL-CIO reversed its longstanding support for immigration restriction and embraced a new

policy favoring immigrant rights and a path to legalization for the undocumented.

Although the phenomenon of immigrant union organizing remains markedly uneven across

industries and occupations, and some unions do far more of it than others, today virtually

all U.S. labor unions offer at least nominal support for immigrant workers’ rights.7

When union organizers first began recruiting immigrant workers in significant

numbers during the 1980s, they met with widespread skepticism among labor movement

officials and outside observers alike, most of whom presumed that these newcomers –

especially those without legal status – would not be receptive to organizing opportunities.

Many immigrants were sojourners who intended to return to their home countries after

7For the history of organized labor’s immigration policies see Janice Fine and Daniel Tichenor, “A Movement Wrestling: American Labor’s Enduring Struggle with Immigration, 1866-2007,” Studies in American Political Development 23:1 (2009): 1-30.

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working in el Norte for a few years, the argument went – so why should they invest time

and effort in a quest for unionization? Besides, the skeptics noted, immigrants routinely

compared their wages and working conditions in the United States to what they had

experienced back home, and thus were not likely to be especially concerned about raising

U.S. labor standards. Furthermore, many presumed that the unauthorized immigrants who

made up a growing part of the foreign-born workforce were too fearful of apprehension

and deportation to assume the considerable risks involved in actively seeking unionization.

However, this once-conventional wisdom has been falsified repeatedly over the past

few decades.8 The real and imagined barriers to recruiting foreign-born workers into

unions are in practice counteracted by other factors that often make it easier to organize

Latino immigrant workers than their U.S.-born counterparts. One such factor is the

strength of immigrant social networks, which help newcomers establish a foothold in the

host society – not least by helping them find jobs. As a result, these social networks are

embedded in many workplaces, where they can become a resource for union organizing. In

addition, Latino immigrants often understand their fate not so much as determined by their

individual attributes or achievements, but rather as bound up with the fate of other

members of their community. That worldview can facilitate collective action like union

organizing, when the opportunity presents itself. And some Latino immigrant union

recruits have a background of political and/or union activism in their home countries, still

another resource facilitating their engagement with U.S. trade unions.

Another factor that often makes these workers highly receptive to unionization

efforts is the ordeal of immigration itself and the stigmatization and hostility they

8See Hector Delgado, New Immigrants, Old Unions: Organizing Undocumented Immigrants in Los Angeles (Philadelphia: Temple University Press, 1993); Immanuel Ness, ed., Immigrants, Unions, and the New U.S. Labor Market (Philadelphia: Temple University Press, 2005); Ruth Milkman, ed., Organizing Immigrants: The Challenge for Unions in Contemporary California (Ithaca: Cornell University Press, 2000); Ruth Milkman, L.A. Story: Immigrant Workers and the Future of the U.S. Labor Movement (New York: Russell Sage Foundation, 2006).

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experience – whether or not they have legal status – within the host society. The shared

stigma and the related experience of racialization reinforce their collective worldview as

well as the social networks that link immigrant workers together. Finally, in regard to the

issue of fear: while participation in union drives in the contemporary United States does

involve a high risk of job loss and other forms of employer retaliation, these hazards are

minor relative to those involved in, for example, crossing the U.S. border without

authorization. Perhaps this is why fear does not seem to have stopped many immigrants

from participating in union organizing drives, when they have had the opportunity to do so.

For all these reasons, those unions that have sought to recruit immigrant workers

into their ranks have been welcomed enthusiastically on the ground. In fact, such efforts

have been among the most successful labor organizing drives in recent memory. The iconic

example is the Service Employees International Union’s “Justice for Janitors” campaign, but

there are many others as well. Public sympathy is often in short supply for union struggles

in high-wage workers in declining industries like auto or steel, or on behalf of public

workers, who are often perceived as unfairly advantaged over other U.S.-born workers. In

striking contrast, efforts to unionize poorly paid immigrants who suffer egregious abuse at

the hand of employers can win broad pubic support.

One feature of the janitors’ campaign and many of the other immigrant organizing

success stories is that they have secured union recognition outside of the traditional NLRA

representation election process. Indeed, these campaigns were on the leading edge of a

broader trend toward establishing alternatives to that traditional process, which unions

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have increasingly abandoned as flawed and ill-suited to currently prevailing employment

arrangements.9

The second strand of the immigrant labor movement involves organizational forms

that depart more radically from the NLRA regime, namely the burgeoning community-

based “worker centers.” These groups target workers in precarious, non-standard

employment arrangements in which conventional union organizations are notoriously

difficult to establish – such as day labor or domestic service – or in decentralized industries

that unions have virtually abandoned as “unorganizable,” like garment-making or

restaurants. In 2005, there were 137 worker centers in the United States.10 Many of their

leaders and supporters are ambivalent about or even overtly hostile to traditional unions,

which they view not only as ill-suited to the challenges of organizing non-standard

workers, but also as overly bureaucratic, inflexible, and conservative.11 Yet worker centers

are quite similar to unions in their appeal to immigrant workers striving to improve their

economic situation.

Worker centers routinely provide information to low-wage immigrant workers

about their rights under U.S. labor and immigration law, a type of assistance that is highly

prized by recipients. The centers also offer direct services to workers, especially by filing

legal claims seeking to remedy wage and hour law violations. They centers almost never

become involved in NLRA legal issues, but many do attempt to use “employment law as

9 See Benjamin I. Sachs, “Labor Law Renewal,” Harvard Law & Policy Review 1 (2007), p. 378. 10Janice Fine, Worker Centers: Organizing Communities at the Edge of the Dream (Ithaca: Cornell University Press, 2006). See also Jennifer Gordon, Suburban Sweatshops: The Fight for Immigrant Rights (Cambridge: Harvard University Press, 2005) and Ruth Milkman, Joshua Bloom and Victor Narro, eds., Working for Justice: The L.A. Model of Organizing and Advocacy (Ithaca: Cornell University Press, 2010). 11 See Janice Fine, “A Marriage Made in Heaven? Mismatches and Misunderstandings between Worker Centers and Unions.” British Journal of Industrial Relations 45:2 (2007): 335-360.

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labor law,” to use Benjamin Sachs’ phrase, in the course of their organizing.12 Some centers

offer social and educational services as well. However, the demand for such assistance is so

vast relative to the modest staff and funding available that most worker centers that start

out with a service provision mission tend to limit this aspect of their work early in their

development. Not only are they fearful that service provision could rapidly deplete their

limited resources, but they often see it as incompatible with the goal of long-term

institutional change – treating the symptoms rather than the root causes of low-wage

workers’ predicament. Instead, most worker centers devote their limited resources to

advocacy campaigns designed to extract concessions from employers and governments.

They organize at the grassroots level to target specific workplace injustices, expose

employer abuses to the public through media outreach as well as by direct appeals to

consumers, and engage in policy and legislative advocacy to improve enforcement of

employment law. Some centers have secured passage of new legislation that provides

concrete benefits for low-wage immigrant workers (although ensuring adequate

enforcement has often proved difficult).

Considering the sparse resources at their disposal, the centers have accomplished a

great deal in recent years. But this mode of organizing has its limitations. As Steve Jenkins

has observed, “unlike union campaigns where workers can potentially demand higher

wages, vacation days, and health insurance,” worker centers rarely extend their efforts

beyond seeking remedies for blatantly illegal employer practices.13 On the other hand, the

centers enjoy some freedom of maneuver that unions lack, since they are – thus far at least

12 Sachs, “Labor Law Renewal,” p. 389f. 13 Steve Jenkins, “Organizing, Advocacy, and Member Power: A Critical Reflection,” Working USA 6:2 (2002): 56-89.

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– not subject to the ban on secondary boycotts and other such tactics under the NLRA.14

Still, even the most successful worker center campaigns typically yield only modest

improvements in pay and conditions for small groups of workers. They have achieved far

more on the moral and discursive level, gaining extensive publicity for labor law violations

and other problems affecting immigrants as well as other low-wage workers.

The third strand of immigrant labor activism is the immigrant rights movement

itself. A range of efforts to win a path for legalization for the unauthorized gradually grew

into a national movement in the two decades that followed passage of the 1986

Immigration Reform and Control Act (IRCA). That movement burst into public view in the

spring of 2006, when millions marched in the nation’s streets to protest H.R. 4437, the

draconian proposal passed by the U.S. House of Representatives in late 2005 that proposed

to criminalize unauthorized immigrants for merely being present in the country. The

immigrant rights movement uses the rhetoric of human rights and civil rights, and enjoys

support from a broad coalition that includes churches and ethnic organizations, but its

underlying thrust is to improve the economic opportunities available to immigrants,

especially the unauthorized. In that sense, the movement constitutes a form of labor

activism – and indeed it has won energetic support from unions and worker centers alike.15

Tensions and differences sometimes divide these three strands of immigrant labor

activism (unions, worker centers, and the immigrant rights movement). Yet their basic

goals are strikingly similar, their activities are often synergistic, and at some points their

efforts directly intersect. All three embrace the key goal of securing access for immigrants

14 But see David Rosenfeld, “Worker Centers: Emerging Labor Organizations – Until They Confront the National Labor Relations Act,” Berkeley Journal of Labor and Employment Law 27 (2006): 469-82. 15 For a similar claim about the “sans papiers” protests in France, see Natasha Iskander, “Informal work and Protest: Undocumented Immigrant Activism in France, 1996-2000,” British Journal of Industrial Relations 45:2 (2007): 309-34. For analysis of the 2006 marches see Irene Bloemraad. Kim Voss and Taeku Lee, eds., Rallying for Immigrant Rights (Berkeley: University of California Press, forthcoming).

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to jobs that pay a living wage and that offer working conditions that conform to legal

requirements. All three have come to understand that these goals cannot be reached

without securing a path to legalization for the millions of unauthorized immigrants who are

denied basic civil rights. And all three recognize the importance of increasing immigrant

workers’ access to collective representation. Nevertheless, only the traditional union

strand engages at all with the NLRA, and even its engagement is on a steady downward

trend.

Immigrant Unionism in the 21st Century: Achievements and Challenges

As one might expect, immigrants are less unionized overall than U.S.-born workers

today, but thanks in part to the efforts described above, the gap has narrowed significantly

over recent years. At this writing, about 10 percent of the nation’s foreign-born workers,

and 13 percent of the U.S.-born, are union members. The disparity largely reflects the fact

that so few immigrants are employed in the highly unionized public sector. Indeed,

private-sector unionization rates for immigrants and the U.S.-born are nearly identical

(about 7 percent). And for some key subgroups - naturalized citizens as well as immigrants

who arrived in the United States before 1990, private-sector unionization rates are actually

higher – at 10 percent and 9 percent respectively – than the average for U.S.-born workers

(7 percent).16

The vast majority of immigrant workers – and indeed the majority of native-born

workers as well – remain outside of union ranks, but not for lack of interest in organizing.

Recent surveys indicate that a majority of the nation’s nonunion workers would vote to

16 These data are for the eighteen months from January 2009 to June 2010, inclusive. See Ruth Milkman and Laura Braslow, “The State of the Unions: A Profile of 2009-2010 Union Membership in New York City, New York State, and the USA,” available at http://workered.org/Portals/0/NYuniondensity2009-10.pdf

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become union members if they had the opportunity to do so. Although the available data

are fragmentary, surveys as well as qualitative evidence suggest that immigrants tend to be

even more receptive to union organizing efforts, and to have more pro-union attitudes,

than U.S.-born workers. In a 2001-02 survey of nonunion workers in California, for

example, 66 percent of immigrant non-citizen respondents indicated they would vote for a

union if a representation election were held in their workplace, compared to 54 percent of

naturalized citizens and only 42 percent of native-born respondents, a statistically

significant difference. And Latinos generally (regardless of nativity) express more positive

views of unions than other ethnic groups, second only to African Americans in the extent of

their pro-unionism. 17

For immigrants and natives alike, the vast “representation gap” between the

number of workers who express the desire to be union members and the number who

actually are unionized suggests the scale of the challenge facing organized labor today,

especially in the private sector, where union density has fallen into the single digits. Recent

immigrant organizing successes, as noted above, are one of the few bright spots in this

otherwise bleak landscape. But even with a low-wage immigrant workforce that is ripe for

organization and capable of enlisting public sympathy, union drives must overcome

formidable obstacles in order to succeed. Intense opposition from employers is ubiquitous

in the private sector, and until recently, labor faced a hostile political environment as well.

All that must change if the potential of immigrant unionism is ever to be fully realized.

In addition, immigrant union organizing confronts some specific obstacles, beyond

those affecting the workforce as a whole. For example, among the many tactics that

17 For the California survey, see Margaret Weir, “Income Polarization and California’s Social Contract,” The State of California Labor 2002 (vol. 2) p. 121. For examples of other surveys and a summary of some qualitative evidence of immigrant receptivity to union organizing, see Milkman, L.A. Story, pp. 128-129.

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employers use to oppose unionization drives is the threat of turning unauthorized workers

over to immigration authorities. Kate Bronfenbrenner’s study of over 1000 union

representation election campaigns in the 1999-2003 period found that employers made

such threats in 7 percent of all campaigns, in 41 percent of those with a workforce majority

of recent immigrants, and in 50 percent of those with a majority of unauthorized

immigrants.18 As Peter Brownell has shown, such threats have often been carried out, with

direct employer complaints to immigration authorities regularly producing arrests of

unauthorized workers in the course of union organizing drives19

Another critical obstacle is that many low-wage immigrant workers are excluded

outright from coverage under the NLRA. Domestic workers and agricultural workers, two

of the Act’s original excluded categories, are now more likely to be immigrants than African

Americans (the target population when these occupations were originally excluded as a

political concession to Southern Democrats).20 In addition, many immigrant workers are

employed as day laborers, temps, and in other types of “contingent work,” or in jobs like

taxicab or truck driving, which are among the larger group of jobs often classified (or

misclassified, as many observers argue) as “independent contractors.” All these categories

are excluded from NLRA coverage.21

However, as Table 1 reveals, in the private sector, roughly the same overall

proportion (about a third) of U.S.-born and foreign-born workers are excluded from NLRA

18 Kate Bronfenbrenner, “No Holds Barred: The Intensification of Employer Opposition to Organizing,” Economic Policy Institute Briefing Paper No. 235 (May 2009), p. 12. Available at http://epi.3cdn.net/edc3b3dc172dd1094f_0ym6ii96d.pdf 19Brownell argues, using data from the 1990s, that to avoid complaints from employers about disruptive immigration raids in other circumstances, enforcement came to rely on leads from employers, many of them retaliatory. See chapter 5 of Peter Brownell, “Sanctions for Whom? The Immigration Reform and Control Act’s ‘Employer Sanctions’ Provisions and the Wages of Mexican Immigrants,” Ph.D. Dissertation, Department of Sociology, UC Berkeley, 2009. 20 See Ira Katznelson, When Affirmative Action Was White (New York: W.W. Norton, 2005). 21 On the exclusion of “independent contractors,” see Craig Becker, “Labor Law Outside the Employment Relationship,” Texas Law Review 74 (1996), pp. 1527-61.

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coverage. For both groups, the largest excluded category by far is managers and

supervisors, although it accounts for a larger proportion of the U.S.-born (16 percent) than

of immigrants (13 percent). The other large excluded categories are self-employment –

which, since these are self-reported data, probably includes some “independent

contractors” as well – and various forms of contingent work. Taken together, the self-

employed and contingent categories exclude about 10 percent of U.S.-born workers and 13

percent of immigrants.

In order to assess the extent of this problem for low-wage immigrant workers in

particular, the bottom three lines of Table 1 omit managers and supervisors from the

calculation, along with public sector workers (many of whom have collective bargaining

rights, and few of whom are foreign-born) and those covered by the Railway Labor Act

(RLA). In this context there is a sharp disparity in the proportion of foreign and U.S.-born

workers excluded from NLRA coverage – 21 percent and 17 percent, respectively. There

are no data available for unauthorized workers, but the first column of the table shows data

for non-citizen immigrants (a group that includes unauthorized immigrants as well as legal

residents who have not become naturalized citizens). Again omitting managers and

supervisors, public sector, and RLA-covered workers from consideration, almost one-

fourth (23 percent) of non-citizens are excluded from NLRA coverage, and the proportion is

surely higher still for the unauthorized. As many commentators have suggested, updating

the NLRA to offer avenues to union representation for these excluded workers must be part

of any future labor law reform.22 This would especially benefit low-wage immigrants, but

22 See Sachs, “Labor Law Renewal,” and Dorothy Sue Cobble, “Making Postindustrial Unionism Possible,” in Sheldon Friedman, Richard W. Hurd, Rudoph A. Oswald and Ronald L. Seeber, eds, Restoring the Promise of American Labor Law (Ithaca: Cornell University Press, 1994), pp. 285-302. Table 1 of the present paper was inspired by the table Cobble includes on p. 290 of this article.

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also would create new possibilities for collective representation for a large proportion of

U.S.-born workers.

In discussions of immigrant workers and labor law reform, much attention has

focused on the 2002 U.S. Supreme Court 5-4 ruling in Hoffman Plastic Compounds v. NLRB,

535 U.S. 137, which stipulated that if unauthorized immigrants are fired for organizing

activities, they are not entitled to back pay or reinstatement – the legal remedies available

to other workers under the NLRA. The decision’s impact was modest on the practical level:

since back pay and reinstatement awards are relatively rare events, few workers were

affected directly.23 However, Hoffman’s unprecedented signal that the traditional firewall

between immigration law and labor law was no longer sacrosanct had enormous symbolic

significance, raising fears among labor and immigrant advocates that protection for the

unauthorized under other labor and employment laws might also be in jeopardy.24

That has not occurred, however. Indeed, apart from the narrow exception created

by the Hoffman decision itself, the firewall between immigration law and labor law remains

essentially intact, as far as the letter of the law is concerned.25 Although unauthorized

immigrants in the contemporary United States are denied many basic civil rights, in

principle they still are protected by nearly all laws covering wages, hours, and union

representation. But on the ground, the boundary lines are far less clear. The effectiveness

23 A total of 135,000 workers received back pay awards over fiscal years 2004-2008. See James J. Brudney, “Private Injuries, Public Policies: Adjusting the NLRB's Approach to Backpay Remedies,” August 9, 2010. Ohio State Public Law Working Paper No. 131. Available at http://ssrn.com/abstract=1655758 24 See for example, Rebecca Smith et al, “Undocumented Workers: Preserving Rights and Remedies after Hoffman Plastics Compounds v. NLRB,” available at http://nelp.3cdn.net/b378145245dde2e58d_0qm6i6i6g.pdf 25 See Catherine L. Fisk and Michael J. Wishnie, “The Story of Hoffman Plastic Compounds, Inc. v. NLRB: Labor Rights Withiout Remedies for Undocumented Immigrants,” in Immigration Stories, eds. David A. Martin and Peter H. Schuck (Thomson/West, 2005), pp. 351-90. Arguably the scope of Hoffman will turn out to be narrower than many feared. In a 2006 case, Mezonos Maven Bakery, Inc and Puerto Rican Legal Defense and Education Fund, 29-CA-25476, an Administrative Law Judge ruled that because the employer had violated IRCA by knowingly hiring unauthorized immigrants, the employer was liable for back pay. See Monica Guizar, “Employer That Knowingly Violated I-9 Requirement Ordered to Pay ‘Back Pay,’” Immigrant Rights Update 21(6), July 2007, available at http://www.nilc.org/immsemplymnt/emprights/emprights104.htm

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and enforcement of employment and labor laws have been deeply eroded over the past few

decades, even as enforcement of increasingly punitive immigration laws has been steadily

intensified. The result is a growing scissors crisis for low-wage immigrant workers.

Not only has the NLRA become increasingly irrelevant to these workers, as noted

above, but they also have experienced disproportionately high rates of violation of long-

established labor standards. Payment below the legal minimum wage, failure to pay legally

mandated overtime premiums, “off the clock” work, outright wage theft, and retaliation

against those who complain or attempt to organize their co-workers have become standard

business practices in many low-wage industries and occupations. Immigrant workers, and

especially the unauthorized, are particularly vulnerable to these abuses, although many

U.S.-born low-wage workers experience them too.26 Unions and (especially) worker

centers have increasingly focused on these violations, to the point that the Fair Labor

Standards Act is emerging as an alternative to the NLRA as a legal framework for

immigrant organizing.27 As a result, the challenges of updating and improving enforcement

of employment law and labor law are now inextricably intertwined.

To date, however, it has been politically impossible to achieve even the modest labor

law reform embodied in the proposed Employee Free Choice Act. Yet, in light of the many

transformations of the U.S. workplace that have taken place in recent decades, a far more

extensive overhaul of the existing laws is needed. Any such overhaul must also be attentive

to immigration law. Presently, like labor law reform, comprehensive immigration reform is

in political limbo. But immigration law has changed significantly in recent decades, starting

26 See Kim Bobo, Wage Theft in America (New York: The New Press, 2009); Annette Bernhardt, Ruth Milkman, Nik Theodore, Douglas Heckathorn, Mirabei Auer, James DeFilippis, Ana Luz Gonzalez, Victor Narro, Jason Perelshteyn, Diana Polson and Michael Spiller, “Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America’s Cities,” 2009, available at www.unprotectedworkers.org 27 Sachs, “Labor Law Renewal.”

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with the passage of IRCA in 1986. IRCA regularized the status of many unauthorized

workers, but at the same time it ushered in enhanced border enforcement that had the

unintended consequence of increasing the influx of unauthorized immigrants. In response

to the latter development, popular support for punitive immigration measures

mushroomed. In California, home to the nation’s largest unauthorized immigrant

population, voters passed Proposition 187 in 1994. Had it not been struck down as

unconstitutional, this measure would have deprived unauthorized immigrants and their

children of many basic government services, including public education. Two years later,

the Illegal Immigration Reform and Immigrant Responsibility Act made unauthorized

immigrants ineligible for Social Security benefits and, also in 1996, the national welfare

reform placed restrictions on legal immigrants as well. 28

A key turning point came with the September 11, 2001 attacks, when the prospect

of comprehensive immigration reform (momentum for which had been building in the late

1990s) went into the deep freeze. Six months later, on March 27, 2002, the Hoffman

decision was issued, and that same year the Social Security Administration greatly

expanded its use of “no-match” letters.29 Then in 2003, immigration enforcement was

assigned to the newly created Department of Homeland Security’s Immigration and

Customs Enforcement (ICE) agency, which further enhanced border enforcement efforts.

Although the Bush administration strongly supported immigration reform, as it

became apparent that this goal was politically impossible, and perhaps also in response to

the huge immigrant rights marches in the spring of 2006, the administration shifted to a

new approach: starting in 2006, ICE orchestrated a series of high-profile workplace raids.

28 Douglas S. Massey, Jorge Durand and Nolan J. Malone, Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration (New York: Russell Sage Foundation, 2002), chapters 5 and 6. 29 See p. 6 of “Social Security ‘No-Match’ Letters: A Primer,” Migration Policy Institute,

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Immigration raids and deportations were by no means a new phenomenon, but the scale of

those ICE launched in this period was historically unprecedented in the post-World War II

era. Whereas previously the main focus of enforcement had been at the border, now

attention shifted to the nation’s interior. The number of workers directly affected was

relatively small compared to the overall size of the unauthorized population, but the wave

of raids that began in 2006 created a climate of fear in immigrant communities across the

nation. As a result, the scissors crisis grew worse, for unauthorized immigrants who

experienced violations of labor and employment law now were even less likely than before

to pursue the limited legal remedies available.30 The economic downturn only reinforced

their apprehension.

The NLRA’s historical promise of “encouraging the practice and procedure of

collective bargaining” and “protecting the exercise by workers of full freedom of

association, self-organization, and designation of representatives of their own choosing, for

the purpose of negotiating the terms and conditions of their employment or other mutual

aid or protection” is in dire need of renewal. From the perspective of low-wage immigrant

workers, any meaningful legal reform effort must encompass the realms of employment

and immigration law as well as labor law. In the meantime, immigrants will continue to

seek other means through which to organize, driven both by what Sachs calls the

“hydraulic demand for collective action” and by what is still the American dream.31

30 See the report jointly issued by the AFL-CIO, American Rights at Work, and the National Employment Law Project, Iced Out: How Immigration Enforcement Has Interfered with Workers’ Rights (2009) 31 Sachs, “Labor Law Renewal,” p. 393.