Blog & Updates
Workplace Enforcement: A Welcome Shift in Focus
May 06, 2011 - Posted by Maurice Belanger
For many years, America’s large population of unauthorized workers has created a pool of labor that is desperate to work and, because of their immigration status, reluctant to speak up when forced to work in abusive conditions. The plight of these workers was exacerbated when immigration enforcement aggressively reached into the workplace to detain and deport immigrants not authorized to work. Employers were rarely called to account for breaking labor laws.
Law-breaking employers, in some cases, would even call the Department of Homeland Security’s Immigration and Customs Enforcement when their workers attempted to stand up for their rights by, for example, organizing a union. Other employers break the law by nefariously avoiding having to pay their workers after placing a tip to ICE about employee’s suspected immigration status the night before payday.
Historically, immigration enforcement action against workers undercuts efforts to hold employers accountable for the violation of labor laws. Potentially crucial witnesses, once deported, are not available to testify against their employer. Victims are deported without recourse.
Back in 2000, Congress passed the Victims of Trafficking and Violence Protection Act that, in part, provides for temporary visas (U Visas) for victims of certain crimes, provided they are willing to assist law enforcement in the prosecution of the lawbreakers. An individual with a U visa may remain in the U.S. for up to four years, but may apply to adjust to permanent resident status. Qualifying family members may also obtain a U visa, regardless of whether they are in the U.S.
The government was slow to promulgate regulations, and only began issuing U Visas in 2008. After an outreach program to law enforcement agencies to raise awareness about this tool, the statutory cap of 10,000 visas per year was reached for the first time in 2010.
Until now, the Department of Labor (DOL) has not used its authority under regulation to certify applications for U Visas. That is about to change.
On March 15, 2011, DOL Secretary Hilda Solis announced that the Department’s Wage and Hour Division will begin to use its authority to certify U Visa applications. In the statement, the Secretary said she was instructing Department investigators “to identify potential U visa applicants” in order to “help local law enforcement rescue vulnerable immigrants from suffering and help put criminals behind bars." The Department of Homeland Security remains the sole adjudicator of U Visa completed applications.
On April 28, DOL published protocols laying out the guidelines and procedures investigators in the Department’s Wage and Hour Division will follow “to determine when and whether to complete and certify” a petition for a U Visa.
The list of crimes that might make a victim eligible for a U Visa are not those for which DOL is responsible for investigating. However, as Secretary Solis noted in an April 28 statement announcing the protocols,
“Because many wage and hour investigations take place in industries using vulnerable workers in abusive situations, the Wage and Hour Division is often the first federal agency to make contact with these workers and detect criminal activity in the workplace, which it may then refer to the appropriate authorities.”
Of the crimes covered by the Act, DOL has determined that the crimes of involuntary servitude, peonage, trafficking, obstruction of justice, and witness tampering are most likely to be found in connection with a workplace investigation. The protocols note that DOL has authority to certify a U Visa application as an agency that has “detected” the crime, but information about these crimes will be turned over to agencies responsible for investigating and prosecuting them.
The Obama Administration has also made a significant advance on a related front to ensure that immigration enforcement does not undermine labor law enforcement. On March 31, 2011, Department of Homeland Security, Immigration and Customs Enforcement (ICE) and the Department of Labor signed a Memorandum of Understanding that promises more cooperation between the two agencies. Among other things, ICE agrees to refrain from enforcement actions at worksites where there is a pending DOL investigation of a labor dispute, and ICE agrees to “be alert to and thwart attempts by other parties to manipulate its worksite enforcement activities for illicit or improper purposes.” (In other words, ICE will be on the lookout for employers who turn their employees over to ICE in an effort to, for example, bust a union organizing drive.) ICE also agrees to consider DOL requests to offer temporary deferred action to any witness that DOL may need in an investigation of a labor dispute.
In the MOU, ICE also agrees to refrain from worksite enforcement activities in which ICE agents suggest they represent the Department of Labor. (This was a problem several years ago, when ICE agents posted flyers for a mandatory “training” supposedly organized by the Occupational Health and Safety Administration. When immigrants showed up for the “training,” they were arrested by ICE agents and taken away for deportation.)
For its part, the Department of Labor agrees to do a better job of keeping ICE informed of its activities and investigations.
Both the MOU and the U Visa protocols are welcome news from the Administration. Abusive employers have too often been able to avoid accountability when it was their employees who were the targets of enforcement actions. An abusive employer can undercut the competition, and this is not fair for law-abiding employers. When there is a large pool of workers who can be exploited by employers who do not want to pay the legal wage or who do not want to abide by laws governing working conditions, all workers are hurt. A proper focus on the criminal activity of the employer will help level the playing field for all employers, and will lift wages and working conditions for all workers.
Still, the magnitude of the problem these efforts attempt to solve is enormous. The Department of Labor has very limited resources to investigate workplaces where immigrants are prone to abuse. Unauthorized workers make up five percent of the U.S. workforce. (That percentage is much higher in some sectors of the labor force—perhaps as much as 75% of the agricultural labor force is unauthorized to work.) As long as the immigration system does not provide a sufficient number of legal opportunities for immigrants to work, the government will not likely keep pace with the need to reign in employers who abuse their immigrant workers.
It is Congress’ job to fix the broken immigration system. Legalizing immigrant workers who have been living and working in the U.S. would make it more difficult for employers to find workers that can be exploited for fear of deportation. That would make the job of enforcement in the workplace less overwhelming for agencies (whether DHS or DOL) with limited resources.
Unfortunately, it doesn’t look like Congress will act anytime soon. In the absence of Congressional action, the Administration must be applauded for taking steps to focus on abusive employers and to offer immigrant victims a chance to help in the prosecution of perpetrators of worksite crimes, and potentially to be rewarded with eventual permanent residence in the U.S.
Image by Flickr user Luke Hoersten