Sunday, October 29, 2006

ICE, unions and undocumented workers

This past weekend, I had the pleasure of attending the University of Chicago Legal Symposium, held at the law school. The symposium featured a keynote speech by Julie L. Myers, the assistant secretary of homeland security for US Immigration and Customs Enforcement (ICE), on Friday afternoon. Most of the speech was unsurprising, as Ms. Myers took time to highlight the well-known and well-publicized enforcement priorities of ICE.

There was one suprise. Ms. Myers briefly noted that, as unions increasingly provide representation for undocumented workers, "we need to look at" whether these activities cross the line into criminal conduct, such as harboring. When later asked to clarify those remarks, Ms. Myers appeared to back off the statement, emphazing that it is just something that "we need to think about."

I don't think it is. In fact, I can't think of a single good reason for ICE to make the criminal prosecution of labor unions into an ICE priority, and I can think of many reasons ICE should not do so.

Undocumented workers currently face a catch-22 when it comes to wage and labor laws. Although they are technically protected by laws such as the National Labor Relations Act, decisions such as the 2002 Hoffman Plastics decision have sharply limited the degree to which such workers can actually claim remedies under these law. This creates a perverse incentive for unscrupulous employers to hire undocumented migrants and then to ignore wage and workplace protection laws. When undocumented workers try to organize to improve working conditions, the employer can engage in retaliatory firings, knowing that these workers will not be entitled to the same remedies that would be available to citizen workers.

This subvert the purpose of the National Labor Relations Act and immigration law. It actually creates incentives for abusive employers to hire the undocumented (rather than documented workers and citizens), since the cost of violating the NLRA is be cheaper for employers of undocumented workers. It also creates incentives for undocumented workers to accept low wages and poor working conditions without organizing -- after all, organizing for change can get them fired, and they won't be able to avail themselves of sufficient remedies to compensate them for their troubles.

Immigration law enforcement has further reinforced these perverse incentives. When undocumented workers make efforts to organize or to report workplace violations, employers can prevent such efforts by reporting the workers' undocumented status to ICE. If ICE conducts raids, it deports undocumented workers. On the other hand, the costs to employers in the wake of such raids are low. If employers are punished at all, it is only with mild fines. Law professors Jennifer Gordon, Mike Wishnie, Lori Nessel and others have concluded that some employers cynically rely on immigration law enforcement to frustrate laws intended to protect workers.

Now Julie Myers' remarks suggest that ICE may be thinking about a strategy that would further strengthen the hand of the most unscrupulous employers of undocumented workers at the expense of unions. But union-busting is not a good way to prevent undocumented migration. It is a good way to make it even easier than it already is for corner-cutting employers who hire undocumented workers to circumvent wage and labor laws at the expense of all employees -- citizens and noncitizens alike.


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