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Posts Tagged ‘undocumented workers’

Lost wages, serious illness and poor labor standards: The dangers of rebuilding Texas and Florida

Monday, September 11th, 2017

As Texas prepares to rebuild after Hurricane Harvey devastated much of the state, and Florida starts picking up the pieces from the destruction wreaked by Hurricane Irma, emergency workers may face exploitation for the sake of greater profits and speedier project completion.

Past abuses after similar natural disasters have left laborers without all of their wages and with serious illnesses that could have been prevented with proper supervision and training, labor experts say. A large portion of these workers are undocumented and likely afraid to alert authorities when their rights are violated. On top of that, the Trump administration’s approach to labor protections doesn’t inspire confidence, according to workers’ safety experts who spoke to ThinkProgress.

Forty percent of Houston construction workers do not have health insurance, retirement, life insurance, sick leave, and paid time off, according to a 2017 report from the Austin-based Workers Defense Project, an organization that advocates for better health, safety, and labor standards. The report was the result of interviews with over 1,400 construction workers. On average, a construction worker dies once every three days in Texas because of unsafe working conditions.

Texas is also the only state in the country that doesn’t require any form of workers compensation coverage, said Bo Delp, Director of the Better Builder Program at Workers Defense Project.

“After disasters like Katrina, there is a lot of construction going on — rebuilding, repairs, and remodels, and a lot of exploitation as well. Texas is a uniquely bad state for construction workers in terms of conditions,” Delp said. “That is compounded with a disaster like Harvey, when we know, in other contexts, that this has led to exploitation on an unprecedented scale.”

“After disasters like Katrina, there is a lot of construction going on — rebuilding, repairs, and remodels, and a lot of exploitation as well.”

Studies after Hurricane Katrina found that wage theft and unhealthy working conditions were rampant and that undocumented workers were particularly vulnerable. A 2006 study from the New Orleans Workers Center for Racial Justice found that 61 percent of surveyed workers had experienced workplace abuses such as wage theft and health and safety violations. A similar 2009 study by the University of California, Berkeley found that there were concerning differences in conditions for undocumented versus documented workers. Thirty-seven percent of undocumented workers said they were told they might be exposed to mold and asbestos, while 67 percent of documented workers reported they had been informed. Only 20 percent of undocumented workers said they were paid time and a half when they worked overtime.

Delp said that there are “good honest contractors” in the state, but he is concerned about “fly-by-night” contractors who will eschew safety measures to get things done cheaply and quickly.

Sasha Legette of the Houston Business Liaison works alongside community partners and policymakers, including the mayor’s office, to ensure better wage and safety conditions for workers. So far, she said that she has been impressed with Mayor Sylvester Turner’s response to the disaster. But she hopes the state doesn’t rush it in a way that could harm workers.

“We know that the water and flooding has created a very toxic environment and what we don’t want to see happen is that workers or that the city is so eager to rebuild that the safety of those who are going to do that work is not taken under consideration,” Legette said.

“They can identify hazards and prevent the need for OSHA to have to enforce after the fact,” Goldstein-Gelb said.

Sharon Block, executive director of Harvard University’s Labor and Worklife Program and former principal deputy assistant secretary for policy at the U.S. Department of Labor, said she is concerned about the administration’s potential response to the recent disasters.

Often, OSHA will begin with “compliance assistance mode,” which means they will help employers comply with rules, and then will eventually move to enforcement mode. But the Bush administration never moved into enforcement mode after Katrina, and she worries that the Trump administration could do the same.

Block is also worried about whether there are enough resources at the agency. In addition to the proposed cuts and business-friendly approach of the administration, there is no OSHA chief.

“They don’t have real leadership in the agency,” Block said. “So having watched Sandy and the Gulf oil spill, these sort of unexpected disaster responses, even for an agency like OSHA, it’s really complicated and it’s really resource intensive.”

“Based on their level of staffing and resources and everything else about their approach on worker protection issues, I’d be worried about how workers post-Harvey and post-Irma are going to be effective.”

“There is a lot at risk,” Block added. “Based on their level of staffing and resources and everything else about their approach on worker protection issues, I’d be worried about how workers post-Harvey and post-Irma are going to be effective.”

There are some potential downsides to not having an OSHA chief at a time like this, such as getting assistance from FEMA to do work on the ground to address workers’ health and safety needs, said Barab.

“A lot of the activity around these national disasters involves agencies working together,” Barab said. “It requires agencies having frank and candid conversations, [such as] getting FEMA to be more accommodating to the health needs of workers. It always helps to have a higher level person doing that.”

In order to get OSHA staff to hurricane-affected areas in Texas or Florida, OSHA would have to transfer some compliance and enforcement staff there temporarily. But this is expensive and the agency has been chronically underfunded. To reimburse the expenses of doing this, FEMA can provide supplemental assistance, Barab explained, but the state must request this and, on top of that, the state has to contribute 25 percent of the funding.

“To pony up about 25 percent of cost — we haven’t seen a lot of states willing do that. I am not optimistic about Texas and I don’t see them wanting to spend money to get more OSHA enforcement there,” Barab said. “FEMA has the ability to waive that requirement, but they generally don’t, and didn’t, in fact, after [Hurricane] Sandy.”

 One of the other challenges facing OSHA will be outreach to undocumented workers who may be concerned about reporting safety and wage violations. Barab said the government needs to send a message that the U.S. Immigration and Customs Enforcement (ICE) agency will not be involved if workers want to report violations. But because many workers will feel uncomfortable going to a government official in any situation, OSHA needs to maintain relationships with local nonprofits.

“We already had pre-existing relationships with nonprofits that were continuing to train immigrants and day workers during [Hurricane] Sandy,” Barab said. “In terms of being able to reach out to OSHA, the nonprofits had a relationship with these workers and other groups had relationship with OSHA.”

Marianela Acuña Arreaza, executive director of Fe y Justicia Worker Center in Houston, an organization that helps low-wage workers learn about their rights and organizes workers, said the group has been through post-disaster health and safety trainings and has a healthy relationship with the local OSHA office. The center is educating workers on what kind of respirators to use if they’re working in a structure that has mold, for example, while also keeping an eye on any worker safety and wage violations. The center has also benefited as subgrantee from the Susan Harwood program for the last five years.

“Undocumented workers specifically fear retaliation in terms of losing a job or an employer calling ICE on them, and that happens a lot. It is definitely a barrier for people to come forward,” Acuña Arreaza said. “Even other immigrants who have other statuses — some of the fears are similar because they are still worried about losing their job or having their employer retaliate.”

“We try to repeat that and and say, ‘No, you have rights.’ And people start getting it after we repeat it enough.”

By having a staff of mostly immigrants, she said the organization has created an environment where undocumented workers would feel comfortable, never asking workers about immigration status, and working with other nonprofits and local churches to encourage people to come in.

“We try to repeat that and and say, ‘No, you have rights.’ And people start getting it after we repeat it enough,” Acuña Arreaza said. “But there is a huge disconnect that comes from documentation but also comes from not being able to speak English or fully speak English, other cultural barriers, and racism. Lacking papers does not help, but there is this layered separation from justice in the system of worker rights.”

This article was originally published at ThinkProgress on September 11, 2017. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress. She covers economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

A Discussion on Granting Back Pay to Undocumented Workers under the NLRA and the IRCA

Thursday, November 15th, 2012

WASHINGTON, D.C. – At a Cornell ILR Alumni Reception on September 20, 2012, I asked NLRB Chairman Mark Pearce, the keynote speaker, about the nearly six-year deliberation and unusual concurrence in Mezonos Maven Bakery, where the NLRB ultimately reversed an Administrative Law Judge’s (ALJ) 2006 decision granting back pay to undocumented workers under the NLRA.  Speaking candidly, Chairman Pearce emphasized the importance of trying to find consensus in the Board’s voice, and the difficulty of reconciling this case with a 2002 Supreme Court holding in Hoffman Plastic Compounds v. NLRB that appeared to prohibit back pay remedies for undocumented workers.  In recent weeks, Chairman Pearce has added that he “had angst over” the decision, and that “the concept of ‘made whole’ … needs to be examined [by us].”

I first became familiar with Mezonos (and a companion case, Imperial Buffet, though the restaurant-employer later went bankrupt) in the summer of 2011 when working as a Judicial Law Clerk for ALJs Steven Davis and Steven Fish—the finders-of-fact for those cases. These were cases where the employer had flouted their legal obligations to verify work documentation under IRCA, and then further violated the NLRA without having to pay out the central remedy of back pay because the workers were undocumented. Given the inequitable outcomes and the perverse incentives, ALJs Davis and Fish argued for a factual distinction of an employer who was doubly-liable under both IRCA and the NLRA from the Hoffman Plastics scenario of a worker fraudulently submitting false documents to an employer following the legal requirements under IRCA.

On August 9, 2011, the NLRB in its 3-0 decision, following some bruising years after the Boeing case, operating without a sufficient quorum, and an unprecedented attempt by House Republicans to defund the independent agency, locked into politically safe position of extending the Hoffman Plastics holding to cover the Mezonos factual scenario, though then Chairwoman Liebman and incoming Chairman Pearce wrote a concurrence critical of this perverse outcome.

Although a re-thinking of “making whole” may provide a more adequate array of remedies than mere back pay, which is the NLRB’s only real stick in ensuring compliance with its rulings, the NLRB had a strong jurisprudential basis in which to use the fault-based analysis to factually distinguish the Mezonos scenario from Hoffman Plastics.  Specifically, there are examples in tort law and contract law, including the “last clear chance” doctrine and exceptions to in pari delicto, which ensure that the fault-ridden party is ultimately held liable even in a legal regime that might suggest otherwise.

As reconsideration was denied by the NLRB in December 2011, if this case ultimately finds its way into the Second Circuit (or, less likely, the D.C. Circuit), it would be worth considering how these arguments for a fault-based analysis might just result in a ruling that helps protect labor rights while still achieving the aims of our national immigration policy. After all, much angst might be resolved by having reconcilable laws work together, rather than interpreting them at cross-purposes.

This article is based on Jon L. Dueltgen’s award winning essay. He placed second place in a writing competition on labor and employment law offered by the College of Labor and Employment Lawyers. An earlier version of the paper also received recognition from the Louis Jackson National Writing competition.

About the Author: Jon L. Dueltgen is a third-year law student at the University of Pennsylvania and a graduate of Cornell University’s School of Industrial and Labor Relations.  His paper on Mezonos Brooklyn Bakery: A Bridge Too Far for Hoffman Plastics was most recently recognized by the ABA/College of Labor and Employment Law National Writing Competition.

New Mexico Lawmaker Proposes State Guest Worker Program For Undocumented Immigrants

Wednesday, January 18th, 2012

Amanda Peterson BeadleWhile neighboring Arizona keeps its notorious anti-immigrant law on the books, New Mexico may be taking another path. State Sen. Steve Fischmann (D) is proposing a guest worker plan to let undocumented immigrants work legally in the state. If immigrants can prove they have lived in New Mexico for the past year and pass a background check, they could get a worker’s permit and legal status.

Fischmann told a local TV station that he is pushing the guest worker plan because current immigration policy is not working:

The feds are failing us,” said Fischmann. “We make lawbreakers out of everybody with our current immigration policy whether you’re an employer or someone trying to get a job.”

Fischmann said about six percent of New Mexico’s workforce is undocumented, working mainly agricultural jobs.

“It really strives to keep immigrant families together,” said Fischmann. […]

But the idea seems to be going nowhere fast.

To try to set up a state guest worker program is doomed to failure,” said Rep. Dennis Kintigh, R-Roswell.

Kintigh said a guest worker program would be giving amnesty to thousands of immigrants who have broken federal laws.

The federal government would have to approve Fischmann’s plan, and before that could happen, the New Mexico legislature would have to pass the bill. The legislative agenda is set by the governor, and Gov. Susana Martinez (R) has not commented on the proposal except to say that she thinks immigration reform is a federal issue.

Utah Gov. Gary Herbert (R) signed into law a guest worker plan that allows undocumented immigrants who meet certain requirements to have a state-issued permit to work in Utah. And California may consider its own version of the Utah law. Given the important role immigrants play in the U.S. economy and military, these state guest worker plans are helpful measures to let more people actively participate in the workforce.

This blog originally appeared in ThinkProgress on January 18, 2012. Reprinted with permission.

About the Author: Amanda Peterson Beadle is an editorial assistant at ThinkProgress.org. She received her B.A. in journalism and Spanish from the University of Alabama, where she was editor-in-chief of the campus newspaper The Crimson White and graduated with honors. Before joining ThinkProgress, she worked as a legislative aide in the Maryland House of Delegates. In college, she interned at the Scripps Howard Foundation Wire, the Press-Register (Mobile, Alabama), and the Ludington Daily News. She is from Birmingham, Alabama.

Will Public Workers and Immigrants March Together on May Day?

Friday, April 29th, 2011

david baconOne sign carried in almost every May Day march of the last few years says it all: “We are Workers, not Criminals!” Often it was held in the calloused hands of men and women who looked as though they’d just come from work in a factory, cleaning an office building, or picking grapes.

The sign stated an obvious truth. Millions of people have come to the United States to work, not to break its laws. Some have come with visas, and others without them. But they are all contributors to the society they’ve found here.

This year, those marchers will be joined by the public workers we saw in the state capitol in Madison, whose message was the same: we all work, we all contribute to our communities and we all have the right to a job, a union and a decent life. Past May Day protests have responded to a wave of draconian proposals to criminalize immigration status, and work itself, for undocumented people. The defenders of these proposals have used a brutal logic: if people cannot legally work, they will leave.

But undocumented people are part of the communities they live in. They cannot simply go, nor should they. They seek the same goals of equality and opportunity that working people in the United States have historically fought to achieve.  In addition, for most immigrants, there are no jobs to return to in the countries from which they’ve come. The North American Free Trade Agreement alone deepened poverty in Mexico so greatly that, since it took effect, 6 million people came to the United States to work because they had no alternative.

Instead of recognizing this reality, the U.S. government has attempted to make holding a job a criminal act. Thousands of workers have already been fired, with many more to come. We have seen workers sent to prison for inventing a Social Security number just to get a job. Yet they stole nothing and the money they’ve paid into Social Security funds now subsidizes every Social Security pension or disability payment.

On May Day in 2007, immigrants and their supporters marched through the streets of Kennett Square, Pa., a small town where thousands of immigrant workers labor in sheds growing mushrooms. The march was organized by the Farm Worker Support Committee (CATA) and many workers came from the only union shed, Kaolin Farms.   (Photo copyright David Bacon)

On May Day in 2007, immigrants and their supporters marched through the streets of Kennett Square, Pa., a small town where thousands of immigrant workers labor in sheds growing mushrooms. The march was organized by the Farm Worker Support Committee (CATA) and many workers came from the only union shed, Kaolin Farms. (Photo copyright David Bacon)

Undocumented workers deserve legal status because of that labor—their inherent contribution to society. Past years’ marches have supported legalization for the 12 million undocumented people in the United States. In addition, immigrants, unions and community groups have called for repealing the law making work a crime, ending guest worker programs, and guaranteeing human rights in communities along the U.S./Mexico border.

The truth is that undocumented workers and public workers in Wisconsin have a lot in common. In this year’s May Day marches, they could all hold the same signs. With unemployment at almost 9%, all working families need the Federal government to set up jobs programs, like those Roosevelt pushed through Congress in the 1930s. If General Electric alone paid its fair share of taxes, and if the troops came home from Iraq and Afghanistan, we could put to work every person wanting a job. Our roads, schools, hospitals and communities would all benefit.

At the same time, immigrants and public workers need strong unions that can push wages up, and guarantee pensions for seniors and healthcare for the sick and disabled. A street cleaner whose job is outsourced, and an undocumented worker fired from a fast food restaurant both need protection for their right to work and support their families.

Instead, some states like Arizona, and now Georgia, have passed measures allowing police to stop any “foreign looking” person on the street, and question their immigration status. Arizona passed a law requiring employers to fire workers whose names are flagged by Social Security. In Mississippi an undocumented worker accused of holding a job can get jail time of 1-5 years, and fines of up to $10,000.

The states and politicians that go after immigrants are the same ones calling for firing public workers and eliminating their union rights. Now a teacher educating our children has no more secure future in her job than an immigrant cleaning an office building at night. The difference between their problems is just one of degree.

But going after workers has produced a huge popular response. We saw it in Madison in the capitol building. We saw it in the May Day marches when millions of immigrants walked peacefully through the streets. Working people are not asleep. Helped by networks like May Day United, they remember that this holiday itself was born in the fight for the 8-hour day in Chicago more than a century ago.

In those tumultuous events, immigrants and the native born saw they needed the same thing, and reached out to each other. This May Day, will we see them walking together in the streets again?

For information about where May Day marches are scheduled to take place this Sunday, visit the May Day United website.

About the Author: David Bacon is a writer, photographer and former union organizer. He is the author of Illegal People: How Globalization Creates Migration and Criminalizes Immigrants (2008), Communities Without Borders (2006), and The Children of NAFTA: Labor Wars on the US/Mexico Border (2004). His website is at dbacon.igc.org.

This blog originally appeared In These Times on April 28, 2011. Reprinted with Permission.

American Apparel Stripped of 1,800 Workers - to What Effect?

Friday, October 2nd, 2009

The firing of 1,800 apparently undocumented workers at American Apparel’s Los Angeles garment factory, forced by a federal investigation, is an example of the Obama administration’s new approach to workplace enforcement, which avoids the Bush administration’s militarized raids.

Unlike other companies targeted for immigration enforcement, American Apparel’s factory boasts positive working conditions and relatively high wages. Workers have health and life insurance, paid English classes and even masseuses on the shop floor, yet the company has still managed to compete with cheap imported clothing and grow very profitable very quickly.

An American Apparel factory in California. (Photo by Humain, via Flickr)

News coverage mentions American Apparel’s “proprietary” production system, so the logistics that let the company treat workers well and still profit in a globalized market may not be widely known. It remains to be seen how the company will survive, given the forced firings and the fact it was already suffering heavily from the recession. (And the fact that the company’s success is probably partly a fashion or social justice fad whose novelty is doomed to fade.)

My initial reaction to yesterday’s news was that a hypocrisy had been exposed, since American Apparel’s very existence is based around its Made in the USA label, and—rightly or wrongly—I associated that label with consumers who are not fans of undocumented immigrant workers.

Then I realized that if American Apparel management guessed their employees were undocumented (they contend they didn’t), publicly embracing the workers as the part of the American workforce they are makes a statement.

Founder and CEO Dov Charney, a Canadian immigrant, has in the past spoken out for sweeping immigration reform, as described in this New York Times story. Apparently the federal investigation, started under the Bush administration, was already underway as Charney launched this ad campaign.

Meanwhile, it is impossible to ignore the fact that while shop floor conditions at American Apparel appear to be very positive, Charney’s one-on-one interactions with his employees, at least female ones, leaves a lot to be desired (as In These Times reported in 2005).

At least three ex-employees have filed sexual harassment suits against Charney, who is known to conduct business in his underwear or even while naked. He describes these habits as creative freedom, which his employees apparently don’t appreciate (see MSNBC’s report here).

Employees told Businessweek, “It was a company built on lechery,” and “I thought it was a male contemporary perspective on feminism, but it turns out to be just a gimmick.”

Many also complain American Apparel’s ads offensively sexualize and objectify young women, especially young immigrant women of color. The company markets the fact that its ads feature employees, but I wonder if they are paid as much as professional models would be.

Ultimately it is ironic that, as one worker quoted by The New York Times points out, the fired workers are likely to end up at actual sweatshops or other under-the-table, exploitative work situations in the U.S.

In other words, while the current federal workplace enforcement policy is more humane and logical than the militarized raids of the past, without comprehensive immigration reform it still comes off as a relatively pointless or purely symbolic gesture.

About the Author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist writing for publications including The Washington Post, the Chicago Reader and The Progressive. Her most recent book is Revolt on Goose Island.

This post originally appeared in Working In These Times on October 1, 2009. Re-printed with permission from the author.

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