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Employer Sanctions

Prepared by the Dignity Campaign for Immigration Reform
Based on Human and Labor Rights

What are employer sanctions?

Employer sanctions are a provision of the Immigration Reform and Control Act of 1986. That act makes it illegal for an employer to hire a worker who has no legal immigration status, and makes it illegal for such a worker to have a job. It penalizes the employer for hiring undocumented workers (the “sanctions”), and also penalizes the worker for working. On the surface this looks like an anti-employer law. In reality it’s an anti-worker law. Its real effect is that it makes it illegal for an undocumented worker to have a job. Employers dependent on immigrant labor treat the possibility of violations and fines (which are not great) simply as a cost of doing business.

How are sanctions implemented?

The law requires employers to verify a workers immigration status by having job applicants fill out an I-9 form, declaring their immigration status, and requiring two pieces of identification. Employers must also demand a Social Security card. Those forms are kept in the employers’ personnel files.

How were sanctions passed into law?

The Immigration and Naturalization Service (now Immigration and Customs Enforcement) and anti-immigration groups advocated sanctions for many years before the law passed in 1986. The justification for sanctions was then, and still is today, that if people could not work, pay rent, buy food or send money home to their families, they would leave the U.S. and that others wouldn’t come in the future. They were first introduced into Congress in the early 1970s, and strong opposition by civil rights, religious and immigrant rights groups delayed their passage for many years. Finally, the law was passed in 1986 when its backers agreed to a legalization program, which offered people who had immigrated without documents up to 1982 the chance to normalize their status.

Can sanctions stop undocumented immigration?

No. Employer sanctions have little or no effect on whether people come to the US looking for work. They have their impact on people once they’re here, by making them vulnerable to employer pressure, and fearful about advocating for their rights.

After IRCA passed, the undocumented population was estimated to be 1.8 to 3 million. It then rose to 2.7 to 3.7 million by 1992, the year before the North American Free Trade Agreement went into effect. The Pew Hispanic Trust estimates that the number of undocumented people in the U.S. is now 12 million. Even during the recession, when unemployment rose to over 10% the number of undocumented only dropped by less than 5%. In other words, people did not leave the country as a result of employer sanctions. In fact, since the passage of NAFTA over 6 million people from Mexico alone have come to the U.S.

People immigrate to the U.S. for reasons of poverty, war and lack of opportunity. As the U.S. has imposed more free trade agreements on Mexico, Central America and other countries, along with economic reforms intended to benefit corporate investors, more people have been forced to leave home in order to find work and survive. Employer sanctions do nothing about this economic pressure forcing people to migrate. There are over 200 million people in the world today who have left their countries of origin, only a tiny percentage of whom live in North America. Migration is a global phenomenon, and only social and economic justice will create a world where migration is not a means of survival.

How do employer sanctions affect workers’ right to organize?

Employer sanctions put the enforcement of immigration law into the employers’ hands. The ICE and employers often cooperate to verify the I-9 forms in personnel files when workers start organizing or protesting bad conditions, as a way of terrorizing their workers and getting rid of union activists. This happened, for instance, when Shine Building Maintenance used the verification process to get rid of pro-union workers at the start of the campaign by SEIU Local 1877 to organize janitors at Apple Computer. It happened when hundreds of apple processing workers tried to join the Teamsters Union in Washington State, and when workers were organizing into the UFCW at the huge Smithfield meatpacking plant in North Carolina. There are many other examples.

What other effects have sanctions had in the workplace?

The Social Security Administration now also sends out lists of workers, whose SS numbers don’t match their database, to employers in a cooperative program with the ICE to remove these workers from the workforce. Although SSA was forced to include language in these letters telling employers that a worker’s name on the list wasn’t to be construed as a statement about their immigration status, employers commonly treat it that way. Unions, the ACLU and the National Immigration Law Center got a restraining order against a Bush-era regulation that would have sent no-match letters to all employers, and would have forced them to fire all the workers listed. Under the present administration, however, SSA has continued to send the letters to individual employers.

In the last two years, ICE has begun a program of audits of the I-9 forms at over 2000 companies. In the audit, ICE looks at the personnel records, including SS numbers, and then gives the employer a list of workers it says are undocumented. It orders the employer to fire the workers. This has led to massive firings – thousands of janitors in Minneapolis, Seattle and San Francisco, thousands of garment workers in Los Angeles, and most recently, hundreds at Chipotle fast food restaurants and Target stores. While ICE says it is punishing employers who pay substandard wages, the employers have usually been union companies with higher wages.

The administration is also implementing an electronic database called E-Verify. Employers with Federal contracts are required to check this database before hiring any worker to make sure they have “work authorization,” which means legal immigration status. Many states have now passed laws requiring other employers to use the E-Verify database as well. Both the E-Verify and Social Security database are full of errors, affecting even workers who are citizens or legal residents.

No-match letters, I-9 audits and E-Verify are all methods for enforcing employer sanctions, and have led to the firing and blacklisting of many union activists. This practice has also created an atmosphere of terror in many workplaces, in which workers fear to protest low wages and bad conditions.

The INS for some years required Department of Labor inspectors to look at the I-9 forms whenever they did an inspection for wage and hour violations. Inspectors were required to turn over the names to the INS of anyone who might be undocumented. This made undocumented workers reluctant to make complaints over unpaid overtime and other violations, since it would have resulted in their deportation, which also affected many others than the undocumented themselves. DoL agreed to stop the practice, but many workers are still afraid to make complaints, and proposals have been made in Congress to require checks of immigration status during labor law enforcement.

Undocumented workers are barred from receiving unemployment benefits, or Social Security retirement and disability benefits, despite the fact that contributions are made in their names. This makes the consequences of losing a job or getting sick much greater for them, and puts pressure on them not to complain or organize. This also is the result of the application of employer sanctions.

Sanctions are also linked to immigration raids, in which ICE agents go into workplaces, interrogate workers, arrest those they believe are undocumented, and then deport them. ICE uses audits to make lists of workers it intends to arrest in raids, and no-match checks and audits have often been a prelude to raids, as they were at Smithfield, Agriprocessors and other meatpacking companies. The administration says I-9 audtis are a “softer” method of immigration enforcement, but there is no promise that ICE will not resume the Bush-era raids, and in fact, the agency deported almost 400,000 people in 2010.

Do employer sanctions just affect immigrants?

Over the last decade there have been many efforts in which immigrant workers, including the undocumented, have asserted their labor rights, tried to organize unions, and win better conditions. This often happens in workplaces where immigrant and native-born workers are working together. This activity helps native-born workers too, since it pursues the same goals of protecting living standard of standards and workplace rights. When employer sanctions undermine the ability of immigrants to advocate for themselves, the non-immigrant workers involved with them get hurt too.

What would happen if sanctions were eliminated?

Workers would be less vulnerable to employer pressure. They would no longer be required to show proof of immigration status, or fill out I-9 forms, in order to get a job. Employers would no longer have information about workers’ legal status. If workers’ Social Security numbers didn’t match the SSA database, this would no longer lead to their firing.

Eliminating sanctions would not change the requirement that people immigrate to the U.S. legally. The ICE would still have the power to enforce immigration law, but not through employer sanctions in the workplace.

If a legalization program were passed at the same time sanctions were eliminated, it would allow undocumented workers currently in the U.S. to normalize their status. A more generous policy for granting workers permanent residence (green cards) would allow people to immigrate legally, eliminating or reducing the presence of undocumented workers in the workplace. Legal residence would allow workers and their families to cross the border freely, deciding when and where they choose to live and work at any given moment.

Wouldn’t employers hire many more undocumented workers, and exploit them mercilessly, if sanctions didn’t keep them from doing so?

Many industries in the U.S. have for decades been dependent on immigrant labor, including the labor of both documented and undocumented workers. Many employers see immigrants as a vulnerable group who can be exploited easily and paid less. Sanctions have not deterred them from this exploitation, which existed long before the 1986 act was passed. Employers will continue to hire immigrant workers with or without sanctions.

Wages and conditions in immigrant-dependent industries won’t go up unless unions and workers organize, and advocate for improvements. Employer sanctions are a big obstacle standing in the way. Instead of pressuring employers to better conditions, sanctions create a second-class group of workers who have far fewer rights, and make it more difficult for those workers to organize. Despite those obstacles, undocumented workers have been willing to organize for better conditions, and there are many examples of their activity, including labor actions by dry-wallers, carpenters, farm workers, garment workers, janitors, hotel workers and others. The playing field for workers will be more level if sanctions are eliminated.

What position have unions taken on sanctions?

The AFL-CIO supported sanctions when the 1986 law was originally passed, despite opposition and reservations from many unions. In 1999, the federation changed its position, and called for the repeal of employer sanction, along with a legalization program for undocumented workers, and increased enforcement of labor protections, including the right to organize. National union leaders, including Arturo Rodriguez (UFW), John Wilhelm (UNITE HERE), Eliseo Medina (SEIU), and Joe Hansen (UFCW) spoke in favor of changing the old policy, for legalization and the repeal of employer sanctions. Since then, many labor unions have made organizing immigrant workers an important priority.

The hotel union, UNITE HERE, also calls for balancing the needs of immigrants and other communities with a history of discrimination and high unemployment, especially African-Americans. The union says that sanctions enforcement tends to divide people and pit them against each other, making it more difficult for them to organize. On the other hand, enforcing immigrant rights, stronger affirmative action to require employers to hire from communities with high unemployment, and protecting the workplace and labor rights of all workers, is a better way to lift the conditions of everyone.

Today unions are again divided over employer sanctions. AFL-CIO President Rich Trumka recently called for protecting the rights of all workers in the workplace. But both labor federations and some unions now also call for enforcement of “work authorization,” which means that workers without that authorization (because they are undocumented) would be fired.

What is the Hoffman decision?

The National Labor Relations Act makes it illegal (an unfair labor practice) to fire a worker for union activity. The normal remedy for an employer having committed an unfair labor practice is to require that the employer rehire the fired worker, and “make them whole” for damages caused by their illegal action. That normally means that they have to pay the back pay for the time the worker was out of work. Over the years, that remedy has been weakened, since employers now can deduct wages earned or unemployment benefits received by the fired worker. But still, they have to “make them whole.”

For undocumented workers, previous court decisions held that the company doesn’t have to rehire someone fired for union activity, since employer sanctions prohibits them from employing them. Bill Gould, former chair of the National Labor Relations Board, criticized this decision for placing immigration law above labor law. Nevertheless, employers still had to make the fired undocumented worker whole — that is, pay them for the time they were out of work, from the moment of firing to the date of the decision. In the Hoffman decision, the Supreme Court ruled that for undocumented workers, employers had no obligation to “make them whole,” since their crime of being in the country illegally disqualified them.

This was a terrible precedent. It means that there is effectively no penalty at all for employers who fire undocumented workers for union activity. It allows employers to violate their union rights at will, with no fear of negative consequences. While the NLRB has always held that all workers enjoy the same labor rights under the NLRA, this is the first decision that separates workers into two categories — those who have NLRA labor rights, and those who don’t. It promotes social and economic inequality, by undermining the principle that all workers have the right to join unions, to act collectively, to protest, and fight for themselves. After Hoffman, some employers sought to deny workers the protection of the Fair Labor Standards Act (requiring overtime pay and enforcing other standards.) They made the same argument — that undocumented workers didn’t qualify for protection under the law.

Why should the decision be repealed?

Repealing Hoffman would remove a big incentive from employers for acting illegally, and at the same time, help workers help themselves by leveling the playing field. If it’s not repealed, it is likely that the same arguments will be applied to other labor protection law as well. Eventually, we will have a growing class of people who are denied the same rights and protections as the majority of the population.

Discussion

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