- What are “Employer Sanctions”
“Employer Sanctions” refers to a specific provision of the Immigration Reform and Control Act of 1986 (IRCA) which prohibits an employer from knowingly hiring an undocumented worker and provides for criminal and civil penalties of employers who violate this provision. In exchange, IRCA included a one-time amnesty provision that granted status to all individuals who could prove they had been living continuously in the U.S. since 1982. “Employer Sanctions” is a misnomer. While it sounds like the measure penalizes the employer, it actually hurts all workers by criminalizing undocumented workers, and as a result, drives down working conditions for everyone.
2. How and why was the Employer Sanctions provision enacted in 1986?
In 1986, the Soviet Union was already falling apart while U.S. capital had fled overseas. The U.S. was poised to be the sole superpower. President Reagan needed a way to bring American capital back to the U.S. He had already exposed the weakness of the working class by successfully breaking the 1980 strike by airline pilots and its union, the Professional Air Traffic Controllers Organization (PATCO), replacing them with military pilots. Despite immediate criticisms the Employer Sanctions provision was actually an effort to secure a cheap labor workforce within the U.S., Reagan, under the guise of protecting US-born workers, allied with big Labor, the AFL-CIO, to pass what has proven over the last 30 years to be a modern day slave law.
3. If Employer Sanctions penalizes employers for hiring undocumented workers, how does it hurt workers?
Rather than a punishment for hiring undocumented workers, by denying immigrants unlawfully present in the U.S. the right to sell their labor, the provision actually encourages employers to prefer such workers, described in the IRCA as “undocumented,” over U.S.-born or immigrants with work authorization because they can pay them less and work them longer hours since they are vulnerable and have no rights. Contrary to the promise that employer sanctions would curb unlawful immigration and protect jobs, during the employer sanctions era, unlawful immigration skyrocketed and many industries that boasted unionized jobs or jobs with good working conditions have declined. In 1986, there was an estimated 3 million undocumented immigrants in the U.S. Today, there are approximately 11 million. Moreover, few employers are actually “sanctioned” under the law which was never meant to be enforced. The limited number of enforcement actions against employers since 1986 is no accident; there are strong political and economic interests that favor expanding the supply of cheap labor and supporting the evasion of laws that seek to mitigate its use.
Consequently, it is not the employers that are punished by the law, but working people in this country. The government gives employers a ‘wink and a nod’ to hire undocumented workers, authorizing them to wield unchecked power and to use immigration status to legally exploit workers. By denying undocumented workers the right to make a living, our government creates an underclass of laborers who are criminalized and forces them to accept the most undesirable, inhumane working conditions. To compete with undocumented workers, native-born Americans and documented workers must then lower their standards or else be replaced by cheaper labor, fueling a cycle of resentment and hostility among working people, becoming the seeds of the grassroots fascism we see today.
4. How would the employer even know a worker’s immigration status?
Part of the Employer Sanctions provision requires an employer to verify the work authorization documents of all prospective workers in the U.S. Commonly referred to as the Form I-9, all workers must indicate whether they have citizenship, permanent residence, or work authorization.
Employer Sanctions Affects All Workers
- If we actually enforce Employer Sanctions and undocumented workers are not allowed to work, won’t that create a demand for documented workers and wages/working conditions will improve for those who get papers?
No. Employers had been hiring undocumented workers before IRCA passed. What IRCA actually created was a greater preference for undocumented workers because it gave employers coercive power over these workers. It is the criminalization that created the demand for undocumented workers and, since employers are able to pit them against other workers, working conditions are worsened. The pressure to seek out and economic advantage gained by securing the cheapest labor is so strong employers will use any means necessary to avoid our nation’s laws to secure it. But by eliminating employer sanctions the preference to hire undocumented workers is eliminated.
2. What coercive power are you referring to?
Under Employer Sanctions, employers are deputized as immigration agents because they are the only ones who are tasked with knowing a worker’s immigration status. Employer Sanctions has actually enabled employers to use immigration status to pit workers against each other. While keeping the undocumented workers under control, employers are able to force documented workers to accept lower wages and longer hours by saying to them: “If you don’t like it, you can leave because I have a lot of people waiting for this kind of job.”
3. How does Employer Sanctions criminalize undocumented workers?
Employer Sanctions denies undocumented workers the right to sell their labor, criminalizing them for simply working. This criminalization creates an underclass of workers without rights. Like all the underclasses our society has historically created, racism is used to justify the super-exploitation of undocumented along with all the accompanying social stigmas attached with being undocumented. This racism is pernicious and informs both the viewpoint that immigration should be restricted based on xenophobia and protectionism and that immigrants are good for the country and economy. In the next section we discuss how this racialization of the national immigration debate forms the basis of both the pro and anti-immigrant positions–hurting both documented and undocumented workers.
While prohibiting workers without authorization to be in the U.S. from working may seem normal today, this was not the case before 1986. Employers have always hired undocumented workers and before 1986, documented and undocumented workers often worked side by side without knowing or caring about immigration status.
4. How does Employer Sanctions affect me, a documented worker?
Employer sanctions drives wages down for all workers because it divides the workforce and prevents organizing. It makes good jobs bad jobs, and that affects all workers. Employers in industries such as service and construction use the competition between documented and undocumented to: 1) undermine working conditions and gains made by workers through organizing, and 3) bust unions. Big labor, responsible for enacting Employer sanctions in the first place, continues to scramble, searching for a way forward and to rebuild memberships by either embracing undocumented and bringing them in as members, or continuing the Reagan/Trump tactic of scapegoating them for the U.S. working class’ economic problems. But neither tactic will work because the problem is not with workers but with employer sanctions. Bringing undocumented in to unions without eliminating the law that strips them of the right to organize will fail as will racist, xenophobic tactics to deport or shut them out of workplaces. As long as there is an underclass employers will continue to prefer this most vulnerable with no rights over unionized undocumented, immigrant, or U.S.-born workers.
The new racism used to justify the super-exploitation of undocumented workers hurts documented workers because it is also used to explain why U.S.-born workers don’t have work. It manifests under the guise of cultural difference/diversity and through seemingly pro-immigrant rhetoric, expressed in sentiments such as “immigrants work hard and contribute to the economy and country,” and “immigrants are willing to do jobs that American workers don’t want to do.” The implication is that Black and white workers can’t or won’t work that hard because they are lazy, or cannot pass a drug test.
Capitalizing on this racialization of the immigration debate, corporations continue to shake off their negative image as greedy capitalists who exploit cheap immigrant labor and fashion themselves as pro-immigrant and non-racist. This image allows big corporations to gain support and even form alliances with immigrant rights groups to further advance their business interests. For instance, senior executives from major corporations such as Dropbox and Uber sit on the board of directors of the National Immigration Forum; and UnidosUS (formerly National council of La Raza) has representatives from the corporate sector on its board of directors including the LA Chamber of Commerce, Shell Oil, and Conexión Amérias. These mainstream immigrant rights organizations help corporations appear non-racist in their efforts to achieve greater political legitimacy and in the process become a labor broker for US businesses, helping corporations procure immigrants to meet their insatiable demand for cheap labor.
This racism is distinct from but helps fuel the racism expressed in the xenophobic rhetoric and attacks against immigrants asserted by U.S.-born and immigrant workers related to the hyper competition with undocumented that is cleverly wielded by Reagan and Trump to fan class and racial resentment and hostility, particularly, but certainly not exclusively, among whites. It also allows employers to suppress workers’ organizing efforts in the name of ethnic solidarity. For example, Chinese restaurant and garment factory owners have long benefited from exploiting Chinese, Southeast Asian, and Central American immigrant workers but rather than being held accountable for these sweatshop conditions, their racism and anti-worker practices have been justified as providing employment opportunities for immigrant workers. Instead of organizing against immigrant businesses, employers and even worker advocates have called for ethnic solidarity, and that workers should stand together in the face of white oppression.
Rather than uniting potential allies to challenge the unequal distribution of wealth and resources and the growing gap between rich and poor, this polarizing racialization alienates and divides workers along the lines of race, ethnicity, and immigration status. It creates a “what about me” mentality and pits one group against the other to compete for limited resources, instead of challenging why resources are limited and why working conditions are worsening in the first place. It obscures who benefits from the division. Rather than be dragged into the spiraling debate over who is more oppressed, who suffers the most, or who deserves the most, we see these opposing racializing perspectives representing the pro and anti-immigrant positions in the national immigration debate as both being pro-exploitation.
5. What would be the economic impact of ending Employer Sanctions? Wouldn’t it just encourage more undocumented workers to come to the U.S.?
It would take away the incentive for employers to hire undocumented workers at substandard wages and working conditions. It would allow all workers, both documented and undocumented to collectively demand higher wages or better conditions without the crippling effect of employers being able to replace undocumented workers when workers organize. This would make it possible for all workers to improve wages and conditions.
Abolishing employer sanctions and replacing it with equal rights for all workers would actually discourage unlawful immigration because there would be no incentive for employers to hire undocumented since they could not super exploit them. In 1980, only 2 million Mexicans were living in the U.S. but today there are more than 11 million.
6. How does Employer Sanctions affect organizing for undocumented and documented workers?
U.S. courts have relied specifically on the employer sanctions provision to exclude undocumented workers from labor and employment protections. This formal exclusion deters and prevents undocumented workers from organizing with coworkers or communicating with labor and employment agencies, such as state departments of labor or the National Labor Relations Board, about unlawful activity they have suffered or witnessed. By deterring undocumented workers from defending their own workplace interests and that of their coworkers, this lowers working conditions for all workers. Employer sanctions also pushes immigrant workers deeper into the shadows by severing the civic ties between undocumented workers and agencies whose public mission have nothing at all to do with immigration enforcement.
7. If the conditions are so bad for undocumented workers, why don’t they just go back to their native country?
Many undocumented immigrants do return to their native country and many new immigrants continue to come to this country. In fact, some have made the argument that before 1986, workers from Mexico and Central America would often migrate across the border during times when work was needed and then return home when it was not. The criminalization of workers and the subsequent increased criminalization of border crossing is what gave rise to many immigrant workers staying in the US. The nation is divided between the idea of pro- and anti-immigrant (let some stay versus kick them all out) but both are misguided and miss the point of the provision’s intentions. Instead of falling into this trap, the real solution is to bring together documented and undocumented workers to demand equal rights and protections and an end to the criminalization part of the working class is the only way out of the immigration debate.
8. But if the undocumented workers leave, won’t it better for us, documented workers?
No. This concept is false. History has shown us that working conditions improve when all workers are united. Division only helps employers.
Employer Sanctions Is a Modern-Day Slave Law
- What do we mean by a modern-day slave law?
Since the abolishment of chattel slavery in this country, there have always been new laws implemented to control labor in America. While the policies and laws have varied from region to region, industry to industry, or targeted different races, the intention and effect are largely the same, which is to control the labor force to benefit the few.
In the South, Black Codes were instituted after the Civil War to restrict new freedoms won by the Freedmen. While the Black Codes stripped many liberties from Black workers, reinstituting slavery by another name, a major component of the codes was the vagrancy law. This law allowed the police to arrest blacks for not working and forced them into labor contracts for substandard wages which were often never paid in full.
Similarly, in 1882, the Chinese Exclusion Act won support by claiming to protect American workers because immigrant workers were undercutting wages. However, there is no evidence to support the fact that after the passage of the Chinese Exclusion Act, that working conditions improved for American workers. Instead, the turn of the 20th century is well-documented with poor and hazardous working conditions at extremely low pay.
Criminalizing Black workers for not working and immigrant workers for working and forcing these workers to work in the shadows with no protections is what actually drove down wages. Employer Sanctions is the current iteration of these laws, denying undocumented the right to sell their labor.
Other Immigration Reforms That Fail to Address Modern-Day Slave Conditions of Workers
- Sanctuary Cities
A “Sanctuary City” generally refers to a city or locality that limits its participation and cooperation with federal immigration officers. Sanctuary cities do not have actual protections. Sanctuary cities are a response to the restrictionist racism of Reagan and Trump calling for deportation and ICE harassment of immigrant communities, but unfortunately fail to address the root cause of the criminalization of undocumented workers. Instead of calling for the abolition of Employer Sanctions, sanctuary adherents fall prey to the sentiment described above that while seemingly pro-immigrant does nothing to address the super-exploitation of workers in these sanctuary cities and states. For example, while New York Democratic Gov. Andrew Cuomo and Mayor Bill de Blasio purport to resist President Trump’s deportation efforts, they refuse to support legislation and policies that would stop epidemic levels of wage theft and protect immigrant communities from displacement due to luxury high rise development. The justification for sanctuary is often to protect hard-working immigrants who are integral and contribute to the economy. When local and state governments like New York only purport to protect immigrants from deportation but fail to actually protect immigrant families from super-exploitation and displacement, it begs the question: sanctuary for whom? A a sanctuary for capital, employers and developers, to exploit immigrants.
2. Deferred Action for Childhood Arrivals (DACA)
“DACA” is a government program that delays deportations for undocumented youths that came to the United States before age 16 and have continuously resided in the United States since 2007. DACA recipients can apply for renewals after the initial 2 year delay expires. DACA does not provide a pathway to documentation and further, subdivides undocumented workers into a class of “DREAMers” and those that are not eligible for DACA.
Like sanctuary, underlying justifications of DACA expose the same new racism described above. It is estimated that one-fifth of DACA recipients work in the health care and educational sector. When President Trump threatened to end DACA home care agencies in the $75 billion home health care industry warned of the “disastrous situation in terms of shortages of supply” if DACA was not reinstated. Home care is a unionized industry in New York City comprised of mostly immigrant women. Many of the City’s approximately 200,000 home attendants work 24 hour shifts sometimes for as many 5 to 6 days per week. They are not paid for the nighttime hours. For two years, home attendants had been organizing against the 24 hour workday and subminimum wages. Yet, it was the prospect of losing DREAMers as a cheap labor workforce that prompted not just employers but home care advocates to sound the alarm. A 2017 New York Times article argued that without DACA workers the labor shortage would force many older and disabled Americans into care facilities and that ultimately “escalating wages could blow a hole in the federal budget.” Again, we see the common concern across party lines to protect the interests of employers, consumers, and even the workers themselves for undocumented to be super-exploited, to do what the Times characterized as “physically and emotionally grueling” work.
“Amnesty” generally refers to granting a one-time legal status to undocumented individuals. For example, in 1986, the Democrats gave in to Employer Sanctions in return for amnesty to over a million undocumented workers. Granting amnesty is not a solution because all those immigrants who come after the amnesty date of eligibility will still be criminalized under Employer Sanctions. While it is important to enable immigrant workers a way to adjust their status (e.g. after being in the country working for six months), amnesty does not abolish employer sanctions and the underclass it creates. Amnesty does not address how this underclass and the racism that justifies it, hurts U.S.-born workers by driving down working conditions for all workers and deepening the exploitation of the working class. It is the criminalization of undocumented workers and the division among workers that impedes the demand of equal rights for all workers to organize to improve working conditions. Amnesty and legalization is the same as paroling a few at the cost of incarcerating the many. We want to abolish the modern-day slave law, not fight for parole for the few.