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Firing Immigrants
Source David Bacon
Date 09/12/13/01:45

By David Bacon
The Progressive, December 2009/January 2010

LOS ANGELES, CA (12/10/09) -- Ana Contreras would have been a competitor for the national tai kwon do championship team this year. She's 14. For six years she's gone to practice instead of birthday parties, giving up the friendships most teenagers live for. Then two months ago disaster struck. Her mother Dolores lost her job. The money for classes was gone, and not just that.
"I only bought clothes for her once a year, when my tax refund check came," Dolores Contreras explains. "Now she needs shoes, and I had to tell her we didn't have any money. I stopped the cable and the internet she needs for school. When my cell phone contract is up next month, I'll stop that too. I've never had enough money for a car, and now we've gone three months without paying the light bill."
Contreras shares her misery with eighteen hundred other families. All lost their jobs when their employer, American Apparel, fired them for lacking immigration status. {Her name was changed for this article.] She still has her letter from the Department of Homeland Security (DHS), handed her two months ago by the company lawyer. It says the documents she provided when she was hired are no good, and without work authorization, her work life is over.
Of course, it's not really over. Contreras still has to keep working if she and her daughter are to eat and pay rent. So instead of a job that barely paid her bills, she had to find another one that won't even do that.
Contreras is a skilled sewing machine operator. She came to the U.S. thirteen years ago, after working many years in the garment factories of Tehuacan, Puebla. There companies like Levis make so many pairs of stonewashed jeans that the town's water has turned blue. In Los Angeles, Contreras hoped to find the money to send home for her sister's weekly dialysis treatments, and to pay the living and school expenses for four other siblings. For five years she moved from shop to shop. Like most garment workers, she didn't get paid for overtime, her paychecks were often short, and sometimes her employer disappeared overnight, owing weeks in back pay.
Finally Contreras got a job at American Apparel, famous for its sexy clothing, made in Los Angeles instead of overseas. She still had to work like a demon. Her team of ten experienced seamstresses turned out 30 dozen tee shirts an hour. After dividing the piece rate evenly among them, she'd come home with $400 for a 4-day week, after taxes. She paid Social Security too, although she'll never see a dime in benefits because her contributions were credited to an invented number.
Now Contreras's working again in a sweatshop at half what she earned before. Meanwhile, American Apparel is replacing those who were fired. Contreras says they're mostly older women with documents, who can't work as fast. "Maybe they sew 10 dozen a day apiece," she claims. "The only operators with papers are the older ones. Younger, faster workers either have no papers, or if they have them, they find better-paying jobs doing something easier.
"President Obama is responsible for putting us in this situation," she charges angrily. "This is worse than an immigration raid. They want to keep us from working at all."

Contreras may be angry, but she's not wrong. The White House website says "President Obama will remove incentives to enter the country illegally by preventing employers from hiring undocumented workers and enforcing the law." On June 24 he told Congress members that the government was "cracking down on employers who are using illegal workers in order to drive down wages -- and oftentimes mistreat those workers."
The law Obama is enforcing is the 1986 Immigration Reform and Control Act, which requires employers to keep records of workers' immigration status, and prohibits them from hiring those who have no legal documents, or "work authorization." In effect, the law made it a crime for undocumented immigrants to work. This provision, employer sanctions, is the legal basis for all the workplace immigration raids and enforcement of the last 23 years. "Sanctions pretend to punish employers," says Bill Ong Hing, law professor at the University of California at Davis. "In reality, they punish workers."
The Immigration and Customs Enforcement (ICE) division of DHS said early this year that it was auditing the records of 654 companies nationwide. The audit at American Apparel actually began in 2007, under President Bush. In Minneapolis, another Bush-era audit examined the records of janitors employed by American Building Maintenance. In May, the company and ICE told 1200 workers that if they didn't provide new documents that showed that they could legally work, they'd be fired. Weekly firings in groups of 300 began in October. The janitors belong to Service Employees Local 26, and work at union wages. The terminations took place as the union was negotiating a new contract.
In Los Angeles 254 workers at Overhill Farms were fired in May. The company, with over 800 employees, was audited by the Internal Revenue Service earlier this year. According to John Grant, packinghouse division director for Local 770 of the United Food and Commercial Workers, which represents production employees at the food processing plant, "they found discrepancies in the Social Security numbers of many workers. Overhill then sent a letter on April 6 to 254 people-- all members of our union - giving them 30 days to reconcile their numbers."
On May 2 the company stopped the production lines and sent everyone home, saying, according to worker Isela Hernandez, "there would be no work until they called us to come back." For 254 people that call never came. According to Alex Auerbach, spokesperson for Overhill Farms, "the company was required by federal law to terminate these employees because they had invalid Social Security numbers. To do otherwise would have exposed both the employees and the company to criminal and civil prosecution."
"We asked to see the IRS letter or any other documents related to this," Grant responds. "We've never heard of the IRS demanding the termination of a worker. They never showed us any letter. The company doesn't have to terminate these people. No document we know of says they do." Some of the terminated workers actually had valid Social Security numbers, and were fired anyway.
Workers accuse the company of hiring replacements, classified as "part timers," who don't receive the benefits in the union contract. "By getting rid of the regular workers, to whom they have to pay benefits, they're saving a lot of money," worker Lucia Vasquez charges. Auerbach says the replacements are paid at the same rate, although he acknowledges they lack benefits.
The history of workplace immigration enforcement is filled with examples of employers who use audits and discrepancies as pretexts to discharge union militants or discourage worker organization. The 16-year union drive at the Smithfield pork plant in North Carolina, for instance, saw two raids, and the firing of 300 workers for bad Social Security numbers.
Nevertheless, whether or not they're motivated by economic gain or anti-union animus, the current firings highlight larger questions of immigration enforcement policy. "These workers have not only done nothing wrong, they've spent years making the company rich. No one ever called company profits illegal, or says they should give them back to the workers. So why are the workers called illegal?" asks Nativo Lopez, director of the Hermandad Mexicana Latinoamericana. The Hermandad, with roots in Los Angeles' immigrant rights movement going back to legendary activist Bert Corona, has organized protests against the firings at Overhill Farms and American Apparel. "Any immigration policy that says these workers have no right to work and feed their families is wrong and needs to be changed," he declares.

President Obama says sanctions enforcement targets employers "who are using illegal workers in order to drive down wages -- and oftentimes mistreat those workers." This restates a common Bush administration rationale for workplace raids. Former ICE Director Julie Meyers asserted that she was targeting "unscrupulous criminals who use illegal workers to cut costs and gain a competitive advantage." An ICE Worksite Enforcement Advisory claims "unscrupulous employers are likely to pay illegal workers substandard wages or force them to endure intolerable working conditions."
Curing intolerable conditions by firing or deporting the workers who endure them doesn't help the workers or change the conditions, however. But that's not who ICE targets anyway. Workers at Smithfield were trying to organize a union to improve conditions. Overhill Farms has a union. American Apparel pays better than most garment factories. In Minneapolis, the 1200 fired janitors at ABM get a higher wage than non-union workers - and they had to strike to win it.
ICE's campaign of audits and firings, which SEIU Local 26 president Javier Murillo calls "the Obama enforcement policy," targets the same set of employers the Bush raids went after - union companies or those with organizing drives. If anything, ICE seems intent on punishing undocumented workers who earn too much, or who become too visible by demanding higher wages and organizing unions.
And despite Obama's notion that sanctions enforcement will punish those employers who exploit immigrants, at American Apparel and ABM the employers were rewarded for cooperation by being immunized from prosecution. ICE threatened to fine Dov Charney, American Apparel's owner, but then withdrew the threat, according to attorney Peter Schey. Murillo says, "the promise made during the audit is that if the company cooperates and complies, they won't be fined. So this policy really only hurts workers."
And the justification for hurting workers is also implicit in the policy announced on the White House site: "remove incentives to enter the country illegally." This was the original justification for employer sanctions in 1986 - if migrants can't work, they won't come. Of course, people did come, because at the same time Congress passed the Immigration Reform and Control Act, it also began debate on the North American Free Trade Agreement. That virtually guaranteed future migration. Since NAFTA went into effect in 1994, over six million Mexicans, like Dolores Contreras, have been driven by poverty across the border. "The real questions we need to ask are what uproots people in Mexico," Hing says, "and why U.S. employers rely so heavily on low-wage workers."
No one in the Obama or Bush administrations, or the Clinton administration before them, wants to stop migration to the U.S. or imagines that this could be done without catastrophic consequences. The very industries they target for enforcement are so dependent on the labor of migrants they would collapse without it. Instead, immigration policy and enforcement consigns those migrants to an "illegal" status, and undermines the price of their labor. Enforcement is a means for managing the flow of migrants, and making their labor available to employers at a price they want to pay.
In 1998, the Clinton administration mounted the largest sanctions enforcement action to date, in which agents sifted through the names of 24,310 workers in 40 Nebraska meatpacking plants. They then sent letters to 4,762 people, saying their documents were bad, and over 3500 were forced from their jobs. Mark Reed, who directed "Operation Vanguard," claimed it was really intended to pressure Congress and employer groups to support guest worker legislation. "We depend on foreign labor," he declared. "If we don't have illegal immigration anymore, we'll have the political support for guest workers."
Bush's DHS Secretary Michael Chertoff said the same thing. "There's an obvious solution to the problem of illegal work, which is you open the front door and you shut the back door." "Opening the front door" allows employers to recruit workers to come to the U.S., giving them visas that tie their ability to stay to their employment. And to force workers to come through this system, "closing the back door" criminalizes migrants who work without "work authorization." As Arizona governor, DHS Secretary Janet Napolitano supported this arrangement, signing the state's own draconian employer sanctions bill, while supporting guest worker programs.

In its final proposal to "shut the back door," the Bush administration announced a regulation requiring employers to fire any worker whose Social Security number didn't match SSA's database. Social Security no-match letters don't currently require employers to fire workers with mismatched numbers, although employers have nevertheless used them to terminate thousands of people. Bush would have made such terminations mandatory.
Unions, the ACLU and the National Immigration Law Center got an injunction to stop the rule's implementation in the summer of 2008, arguing it would harm citizens and legal residents who might be victims of clerical mistakes. In October 2009, the Obama administration decided not to contest the injunction. But while dropping Bush's regulation, DHS announced it would beef up the use of the E-Verify electronic database, arguing that it's more efficient in targeting the undocumented.
Social Security, however, continues to send no-match letters to employers, and the E-Verify database is compiled, in part, by sifting through Social Security numbers, looking for mismatches. DHS Secretary Janet Napolitano called on employers to screen new hires using E-Verify, and said those who do so will be entitled to put a special logo on their products stating "I E-Verify."
John T. Morton, DHS assistant secretary for ICE, told the New York Times in November that the 654 companies audited in 2008 and early 2009 were just a beginning, and that audits would be expanded to an additional 1000 companies. "All manner of companies face the very real possibility that the government ... is going to come knocking on the door," he warned. The original 654 audits, Morton said, had already led to action at 328 employers, which presumably will include a demand to fire workers identified as undocumented.
This growing wave of firings is provoking sharp debate in unions, especially those with large immigrant memberships. Many of the food processing workers at Overhill Farms and ABM's janitors have been dues-paying members for years. They expect the union to defend them when the company fires them for lack of status. "The union should try to stop people from losing their jobs," demanded Erlinda Silerio, an Overhill Farms worker. "It should try to get the company to hire us back, and pay compensation for the time we've been out."
At American Apparel, although there was no union, some workers had actively tried to form one in past years. Jose Covarrubias got a job as a cleaner when the garment union was helping them organize. "I'd worked with the International Ladies' Garment Workers and the Garment Workers Center before," he recalls, "in sweatshops where we sued the owners when they disappeared without paying us. When I got to American Apparel I joined right away. I debated with the non-union workers, trying to convince them the union would defend us."
The twelve million undocumented people in the U.S., spread in factories, fields and construction sites throughout the country, encompass lots of workers like Covarrubias. Many are aware of their rights and anxious to improve their lives. National union organizing campaigns, like Justice for Janitors and Hotel Workers Rising, depend on the determination and activism of these immigrants, documented and undocumented alike.
That reality finally convinced the AFL-CIO in 1999 to reject the federation's former support for employer sanctions, and call for repeal. Unions recognized that sanctions enforcement makes it much more difficult for workers to defend their rights, organize unions, and raise wages.
Opposing sanctions, however, puts labor in opposition to the current administration, which it helped elect. Some Washington DC lobbying groups have decided to support the administration policy of sanctions enforcement instead. One of them, Reform Immigration for America, says, "any employment verification system should determine employment authorization accurately and efficiently." Verification of authorization is exactly what happened at American Apparel and ABM, and inevitably leads to firings. The AFL-CIO and the Change to Win labor federation this spring also agreed on a new immigration position that supports a "secure and effective worker authorization mechanism that determines employment authorization accurately while providing maximum protection for workers."
Covarrubias is left defenseless by such protection, however. Instead, he says, "we need the unity of workers. There are 15 million people in the AFL-CIO. They have a lot of economic and political power. Why don't they oppose these firings and defend us?" he asks. "We've contributed to this movement for 20 years, and we're not leaving. We're going to stay and fight for a more just immigration reform."
Nativo Lopez says he'll organize the workers being fired if unions won't, although recently he also expressed a desire for greater cooperation with the UFCW in the defense of fired workers. Last year the Hermandad began setting up workers' councils in southern California neighborhoods, to oppose employer sanctions and help workers resist them. "If companies start firing people as they have here, this place will look like a war zone," he warns, "but if we fight to defend people, we can organize them."

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