Tuesday, March 11, 2014

Provisional Status Must Include Worker Protections

Guest Blogger: David Fujimoto, third-year law student, University of San Francisco:

House Democrats will decide whether to initiate a discharge petition to bring a vote on a comprehensive immigration reform (“CIR”) bill to the floor.  While the chances are slim that enough Republicans would support a discharge petition to bring a vote, at some point, Congress will have to confront the issue of immigration reform. And when they do, it is vital that any bill that includes a provisional status—such as the Registered Provisional Immigrant (“RPI”) status provisions of Senate Bill 744, passed on June 27, 2013 —not interfere with workers’ rights to organize as provided by the National Labor Relations Act (“NLRA”).
    RPI status would allow previously undocumented immigrants to live and work in the United States for a period of six years.  After six years, RPI status may be renewed if certain conditions are met.   One condition is that the RPI either have no gaps in employment longer than sixty days or demonstrate full-time attendance in an educational institution or program.  Exceptions to the employment/educational requirement include that the RPI was younger than the age of 21 or older than 60 at the time of filing the first extension, has a disability as defined in the Americans with Disabilities Act, was a primary caretaker of a dependent during the gap in employment, or was unable to work due to circumstances outside the RPI's control.  

The employment requirement as currently drafted would create a disincentive for RPI workers to engage in concerted activity for their mutual aid and protection. The requirement that an RPI have no gaps in employment for more than sixty days will make workers think twice about becoming involved in worker organizing efforts. Any immigration bill that contains RPI status should include an exemption to the employment requirement for anyone who was arguably terminated for engaging in conduct protected by Section 8 of the NLRA. The following hypothetical illustrates this problem.
    Imagine that CIR, which includes S.744, has been signed into law. You live in the United States with your spouse and your child, who is a citizen. You and your spouse were previously undocumented, but were recently granted RPI status, which allows you to live and work in the United States for six years.  After six years, you may renew RPI status.  You work for, either, Walmart, McDonalds, Target, or Home Depot—four of the largest private employers in the United States. 
    After a year and a half, you and your coworkers—some have RPI status and some are citizens or have other legal status—have been approached by another coworker who is talking to workers about the benefits of joining a union. You have family who are members of a union and have heard of the benefits of union membership. You are interested, but are worried that if management discovers you are a part of the pro-union group, you risk losing your job.
    This is particularly troubling because you remember that the lawyer who helped you get RPI status said that you cannot apply for Legal Permanent Residency for at least ten years and will have to apply for a RPI renewal after six years. She also said that in order to renew your RPI status, you could have no lapse in work for longer than sixty days. You are afraid that if you are fired, you may not be able to find work within sixty days and would lose your RPI status later, which would result in you losing the legal status and security that you recently gained. You and your coworkers with RPI status all decide against supporting the groups’ organizing efforts. As a result, you and your citizen coworkers are not able to effectively organize to improve the terms and conditions of your employment.
     This scenario is not just a remote hypothetical. Workers, immigrants, and progressive leaders have been organizing workplaces across the country to fight income inequality with calls to raise the minimum wage and improve working conditions.
    Workers and their allies have made some recent progress. For example, Organization United for Respect at Walmart and its allies have brought an executive pay reform proposal to the corporate shareholders’ meeting, presented evidence to investors and stock analysts showing that Walmart’s labor practices are contributing to the company’s relatively poor economic performance, and opposed new stores in the New York and Los Angeles areas.  In December of 2013, thousands of low-wage workers went on strike across 100 cities.  In January 2014, President Obama expressed his support for raising the minimum wage in his State of the Union Address.  Sixty percent of Americans now think the government should work to narrow the income gap.
    Of course, there are many who oppose workers’ organizing efforts. The Koch brothers have supported and continue to support anti-union laws and candidates. Recently, the NLRB filed a complaint alleging that Walmart “violated the rights of its employees as a result of activities surrounding employee protests in 13 states.”  Target and Home Depot specifically includes anti-union propaganda as a part of its employee training.  McDonalds has fought unionization efforts for decades.  And State Farm Insurance is listed as one of the “private enterprise” members of the American Legislative Exchange Council (“ALEC”)—a group known for drafting anti-union model legislation and opposing workers’ efforts to organize.  
    Coincidentally—or not—many of these same antiunion leaders are supporting immigration reform. The Koch brothers appear to be supporting immigration reform, a move commentators have suggested is motivated to appeal to a broader base while actively pushing a right-wing agenda on other interests.  This past November, President Obama met with McDonald’s CEO Don Thompson, Marriott CEO Arne Sorenson—who is also on the board of Walmart, State Farm CEO Edward Rust, and others to pressure Republicans to move forward with CIR.  Walmart,  McDonald’s,  and Home Depot  support immigration reform. 
    While labor unions also support CIR, and few would argue that the status quo—in which businesses hire undocumented workers who are really not protected by the NLRA—is better for organizing immigrant workers, Democrats must ensure that whatever provisional status finds its way into law protects workers’ right to organize as much as possible. If millions of immigrants are granted RPI (as currently drafted) they will continue to be a subgroup of workers who will be more difficult to organize because of the risk that participating in organizing activities may have on their immigration status, making it harder for all workers to improve their working conditions. To protect against this consequence, S.744 should have an exception to the employment requirement if a worker was fired for arguably engaging in activities protected by the NLRA.

bh

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