Workers across this country just got a big boost, and from an unlikely source: the Department of Homeland Security. How’s that?
There are about 11 million unauthorized immigrants in the United States. They’re not recent arrivals in this country. A majority of them have been here for a decade or more. Many have families. And they’re workers, around 8 million of them, who pick and process the food we eat, cook in our restaurants, care for our elderly and infirm, and build our homes. They help keep our economy running, and they pay billions in taxes. They’re integral members of our communities.
And yet, far too many of these workers have been consigned to live in fear. They often find jobs with unscrupulous employers, eager to exploit their undocumented status. They’re paid subminimum wages, with no overtime pay; sometimes they don’t get paid at all. They’re subjected to unsafe conditions, and if they get injured on the job and go to the hospital, they’re told to report that they got hurt at home.
All these employer practices are illegal. Workers, whether documented or not, are entitled to the protections that many federal and state laws provide. This keeps the standards uniform for all workers, so employers don’t have a special incentive to hire those who are undocumented. But immigrant workers without work authorization stay quiet and endure illegality and abuse, fearing the dreaded “call to ICE” that bad employers threaten to make.
And while undocumented workers suffer, their fellow “legal” workers do, too.They see that asserting rights is perilous. Wages are depressed, safety hazards go unaddressed, organizing for better conditions is stifled. This is bad news for all workers.
Hence, whether workers actually receive the protections the laws promise depends significantly on how the DHS — specifically, Immigration and Customs Enforcement — treats undocumented workers. It’s not hard to fathom that when ICE’s enforcement policy prioritizes workplace raids aimed at detaining and deporting unauthorized immigrants, as it did under George W. Bush and Donald Trump, worker vulnerability and worker mistreatment are magnified. The culture of fear engendered by such policies is hard to break.
The Obama administration recognized this and ended workplace raids, focusing instead on border apprehensions, removal of immigrants with criminal records and “paper raids” that investigated employers. It also implemented an agreement between its Department of Labor and ICE. Under the agreement, ICE agreed to stay out of DOL’s way when it was doing worker protection enforcement and would assess whether tips from employers were intended to retaliate against workers or “otherwise frustrate the enforcement of labor laws.”
Obama’s efforts to provide some protections for undocumented workers came to a screeching halt when his successor, Trump, effectively declared war on undocumented immigrants. Workplace terror, dampened at least a bit under Obama, returned.
Under Biden, the pendulum has swung again, decisively, in workers’ favor. Since day two of his administration, DHS Secretary Alejandro Mayorkas has made clear that undocumented workers aren’t in his agency’s crosshairs. He’s repeated that message multiple times, recognizing the contributions of the millions of undocumented workers “who work on the frontlines in the battle against COVID…teach our children, do back-breaking farm work to help deliver food to our table….” Hence, he pledged to adopt immigration enforcement policies that would support “the important work of the Department of Labor and other government agencies to enforce wage protections, workplace safety, labor rights, and other laws and standards.”
True to that commitment, and beginning on Jan. 13, DHS offered a clear means by which undocumented workers who assist a labor investigation could request temporary immigration relief and work authorization. Broad reform of our immigration laws, and a path to citizenship for our millions of unauthorized immigrants, remains a critical need. Nevertheless, with the path that DHS has now provided, undocumented workers and their advocates have notched a huge victory.
As we await further progress toward reform, let’s hope we’ve seen the last swing of this pendulum. For the benefit of all workers — documented or not.
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ABOUT THE WRITER
Michael Felsen concluded a 39-year career as an attorney with the U.S. Department of Labor by serving as New England Regional Solicitor from 2010-2018. He is currently senior advisor with Justice at Work and Strategic Enforcement Advisor with the Workplace Justice Lab at Rutgers University. This column was produced by Progressive Perspectives, which is run by The Progressive magazine and distributed by Tribune News Service.
