In 1986, my father Grant Lee was one of the first million undocumented immigrants in the U.S. who received amnesty under President Reagan’s Immigration Reform and Control Act (IRCA). Having adopted as his first name the surname of the great Union Army general, my father firmly believed in the American Dream and he was sure that his days of being separated from his family, traveling from state to state to toil in restaurants, were about to end.
But IRCA, passed on a bipartisan basis, proved to be a wolf in sheep’s clothing. While it ended up granting amnesty to undocumented immigrants in the country at the time, it also included a provision that criminalized undocumented immigrants for working. Unlike what its name suggests, the employers’ sanctions provisiondid not punish employers, but instead punished undocumented workers for working, creating an underclass of labor and dividing the working class in the process.
“The principal quid pro quo for the one-time amnesty provision was the other major element of IRCA,” Yale Law Professor Michael Wishnie explains in his essay Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails. “The AFL-CIO and NAACP supported employer sanctions, as did a variety of anti-immigrant and nativist organizations. Business groups, Latino organizations, and civil liberties groups, including the ACLU, U.S. Chamber of Commerce, and National Council of La Raza, opposed employer sanctions. But even opponents of employer sanctions recognized that the prohibition on employment might be a reasonable price to pay for the IRCA amnesty provision, which led to the eventual legalization of three million people.”
Grant Lee spent his entire life in the restaurant industry, working his way up at times to be a restaurant manager. Within a decade of receiving his papers, he witnessed another influx of undocumented immigrants who, because they lacked the right to work under IRCA, restaurants were quick to hire. And this new underclass of super-exploitable workers meant that many recently legalized immigrants, like my father, and American-born workers were forced to accept similar sweatshop conditions for fear of not having a job or being fired.
Soon, $5 an hour became $2 an hour. Tip-stealing and wage theft became rampant. Restaurant workers went from working an average of 40 hours a week to 60 hours a week just to make ends meet. Without equal rights as workers to organize and fight to improve their conditions, this labor force, documented and undocumented alike, became immobilized, watching their conditions deteriorate year by year.
Anyone who’s worked in any low-wage industry knows that this is not unique to the restaurant industry. In the 1970s, 40 percent of construction workers belonged in unions, compared to 12.7 percent in 2020. Over this same time period, weekly wages for construction workers have fallen by $200. Some of that wage decline is because of declining union membership, but non-union workers make $60 less a week than they did decades ago even as health and safety violations on construction sites have become rampant due to employers’ intimidation tactics against undocumented workers who dare to speak up about unsafe conditions.
Whenever American, documented immigrant and undocumented workers attempt to come together to unionize or organize for better conditions, they are consistently divided and thwarted by employers who use IRCA as a union-busting tool. Trump, who continued to super-exploit undocumented immigrants working in the Trump Organization even as he pressed for ever more deportations and workplace raids, was an expert at this tactic.
And he was far from the only one. In one highly publicized case, Koch Food employers called in ICE, which arrested 680 Mississippi poultry workers after the workers engaged in union organizing and sued the company for a string of sexual harassment abuses. When documented and undocumented NYC food delivery workers won an injunction from the National Labor Relations Board to reinstate workers illegally retaliated against and fired for organizing, their employer began enforcing the employers’ sanctions provision, refusing to reinstate the unionized undocumented workers even while hiring other undocumented workers who were not previously part of the organizing effort. During a unionizing drive of Fresh Direct online grocery workers by the Teamsters and the United Food and Commercial Workers, the employer called ICE, forcing many undocumented workers to quit and abandon others workers they had been organizing with. Even the government has benefitted from undocumented cheap labor through the subcontracting system—just look at how the city of New Orleans and Houston cleaned up after Hurricane Katrina and Hurricane Harvey. The list goes on.
While the AFL-CIO, realizing the devastating blow that criminalizing the work of undocumented immigrants has had on the labor movement as a whole, reversed its position on the employers’ sanctions provision in 2000. Its then-executive vice president, Linda Chavez-Thompson, explained:
“Employers often knowingly hire workers who are undocumented, and then when workers seek to improve working conditions, employers manipulate the law to fire or intimidate workers. This subverts the intent of the law and lowers working standards for all workers. The law should criminalize employer behavior, not punish workers.”
But many liberals, including those at the New York Times, continue to promote stronger sanctions for employers that hire undocumented workers. This is extremely misguided. Those fines and penalties simply become priced in as a cost of doing business worth far less than the billions of dollars employers have stolen from this underclass of criminalized workers and a divided workforce, in the form of wage theft and denying unemployment, workers compensation insurance and other benefits to the undocumented. The only way to hold employers accountable to wage floors, health and safety standards and discrimination laws is for workers to have the right to come together to organize and hold their employers to account.
President Biden’s immigration proposal, which calls for a pathway to citizenship for 11 million undocumented workers, is a positive step in the right direction. A pathway to citizenship is distinct from previous legalization proposals that still would disenfranchise and alienate immigrants deemed as “illegal” or “criminal.” But if Biden does not also repeal the law that criminalizes undocumented workers for working, his aims to unite the country and strengthen the rights of working people will be stymied.
To accomplish his stated goals, Biden needs to break with both parties’ rhetoric here. The liberal narrative that immigrants do the work that Americans will not do, only serves to fuel resentment among American workers who are passed over for more exploitable labor or who refuse to work in slave-like conditions, and reinforces nativist sentiments among conservatives. Both party’s rhetoric work to sow divisions between workers, while refusing to address the criminalization of a sub-section of the working class. This may explain why Trump gained so many votes among people of color in the past election. According to a 2018 Harvard-Harris poll, 85 percent of Black Americans favor reducing legal immigration, with 54 percent favoring the strictest policies available. If we do not shift the debate and demand equal rights for all workers to work and organize, workers in this country will always remain divided and set against each other.
My father passed away a few years ago at the age of 65. He had been working as a restaurant dining room manager in Chattanooga, Tennessee, living with 15 other workers in a small single-family home owned by his boss. Upon his death, we found him penniless, with only his American passport and citizenship papers in his bank deposit box. He carried to his deathbed his belief in the capacity of Americans to transform the society around them, and for his two daughters to live a better life than their parents and grandparents once did.
If that hope for all of us is to be realized then let’s bury the illusion that other workers are our enemies and work together to change the course of 40 years of a divided and weakened labor movement, the growing impoverishment of our communities, and a deepening wealth gap in the richest country in the world.