Labor historian Fred Glass, looking at the impact of immigration on California's labor movement, notes that many immigrants have arrived in the state with a long history of labor and left-wing activism. Unions have then called on that history and consciousness to aid in organizing drives among janitors, farm workers, hotel housekeepers, and others. “Because the labor movement has understood this fact and designed its efforts around it,” he argues, “California's unionization rate remains at 16 percent while the national average is 11 percent.” The state has 2.55 million union members, far more than any other.
To union leaders, that's also one explanation—in addition to the state designating itself as a sanctuary—for the announcement by the Trump administration that it is targeting California for intensive workplace immigration enforcement. “It's obvious retaliation for California standing up for immigrants,” charges Wei-Ling Huber, president of UNITE HERE Local 2850, the hotel union in the East and North San Francisco Bay Area. “Its purpose is to create a climate of fear among immigrant workers in general, and to attack the unions that have defended them.”
Last fall the state legislature passed a series of bills intended to protect immigrants, especially immigrant workers. One bars police from asking about immigration status and from participating in immigration enforcement actions with federal agents. A second requires warrants before employers can give agents access to workplaces and records of workers' immigration status.
In October Thomas Homan, acting director of Immigration and Customs Enforcement (ICE) of the Department of Homeland Security, accused legislators of “codifying a dangerous policy that deliberately obstructs our country’s immigration laws and shelters serious criminal alien offenders.” Then in December on Fox News, he threatened, “We’ve got to take these sanctuary cities on.” Finally, at the end of January, an ICE statement announced that the agency was auditing the I-9 records that document the immigration status of workers at 77 northern California employers.
“The actions taken this week reflect HSI’s (Homeland Security Investigations) stepped-up efforts,” according to an email from an ICE spokesperson to ABC News. James Schwab, ICE's public affairs spokesperson in San Francisco, did not answer the phone or return phone messages from this reporter.
While ICE would not identify the employers being audited, workers throughout the area have alerted their unions and community advocates of audits in progress. In an I-9 audit, ICE agents review the information provided by workers when they fill out the I-9 form as they're hired, stating their citizenship or legal immigration status. ICE then compares it with its database, trying to determine whether any of the workers are undocumented and therefore lack legal permission to work. Agents then give the employer a list of those workers and demand they be fired.
The process implements the “employer sanctions” provision of the 1986 Immigration Reform and Control Act. While the Act provides for fines on employers who hire undocumented workers, few employers pay penalties, and even if they must, they generally treat it as a cost of doing business. Even fewer are charged with violating federal law.
Last year, ICE said it conducted 1,360 employee audits, but from October 1, 2016, to June 24, 2017, arrested just 42 people in management for violating sanctions. Workers caught up in the audits, however, lose their jobs and the income that supports their families. In some cases, they are also held for deportation.
“Workers encountered during these investigations ... are also subject to administrative arrest and removal from the country,” according to ICE spokeswoman Danielle Bennett. In January, ICE agents didn’t stop at audits, and in 98 7-Eleven stores detained 21 workers for deportation. A large number of those stores were located in California.
Among the 77 companies targeted in the current wave of northern California audits are unionized construction firms and building service contractors in the San Francisco area, and two furniture factories. Workers report workplaces being audited as well in Silicon Valley and Sacramento.
California unions, however, are not unprepared for such actions, and many have a long history of resisting workplace immigration enforcement. “We are training our members on the ground,” explains Anand Singh, president of UNITE HERE Local 2 in San Francisco. “We're using this moment to go back to them and make sure they're clear on their rights under our union contract. Because we're negotiating this year, we're also going to strengthen what we have.”
The union began including provisions protecting immigrants in the 1990s. By the terms of the contract, the hotels have to notify the union if they're contacted by ICE, and the union has the right to represent workers in any case related to their immigration status at work. If a worker changes status (by getting a legal residence card, for instance), they can change their employment information without losing seniority. If a hotel is sold, any new owner has to accept the documents provided by workers to the old owner.
One section of the agreement states, “Except as required by law, the Employer shall not permit the agent(s) to enter the premises without a valid warrant or, in the case of the inspection of the I-9 forms, without 72 hours notice.” That language, and provisions like it in the contracts of other unions, became the model for AB 450, passed by the California legislature last year.
The main initiative in drafting the law came from the state's janitors' unions, United Service Workers West and SEIU Local 87, which have been the target of many raids and audits over the last two decades. AB 450 requires employers to demand judicial warrants to enter a workplace or inspect records, except in the case of I-9 audits (where ICE is not legally required to have them). It also prohibits employers from reverifying immigration documents on their own initiative.
Workers themselves have also taken action to stop reverification. When one northern California hotel changed hands, and the new operator demanded new immigration documents from some workers, all the union members refused to fill out any company paperwork, even to sign the company rulebook, until the demand was dropped. “Solidarity is important, and there are things people can do to protect each other,” says Huber.
When reverification led to the firing of a dozen workers at a local recycling plant, after they'd filed suit over illegal wages, most workers went on strike briefly to defend them. Eventually the company's workers voted for a union and negotiated a contract with substantially higher salaries and greater job security, even as the union raised funds for food and rent for the fired workers.
Agustin Ramirez, an organizer for the International Longshore and Warehouse Union who helped those workers, suggests,
In the contract, unions should have language that protects workers. They should help workers get prepared for possible raids by having emergency plans ready, like for the care of children. But we have to realize that most workers don't have unions. The big question is what can we do to let immigrant workers in general know about their rights, and to make them feel that they're surrounded by a supportive community. If we just keep quiet, or fight this union by union, workplace by workplace, we'll get crushed. We have to make immigration enforcement as public an issue as possible. The law of the street is often the most powerful weapon we have.
The national Jobs with Justice coalition has prepared materials to help unions and workers face audits and raids. Its Buffalo chapter defended workers detained in a raid at four restaurants in 2016, and came up with a list of ways to win community support in such situations. On Long Island, in addition to accompanying workers to deportation hearings, JwJ activists are approaching employers to warn them about ICE audits and raids, assuming the employers don't want to lose their workforce. JwJ distributes a Worker Defense Toolkit, and has suggested language for union contracts to protect immigrant workers. “But it's hard to stay ahead of the fear,” admits Natalie Patrick-Knox, JwJ’s immigration and worker rights organizer.
San Francisco JwJ organizer Kung Feng helps coordinate a broad rapid response network, Bay Resistance, that mobilizes people for marches and lightning demonstrations. “Sanctuary and worker protection laws are important,” he emphasizes, “but we are really each other's sanctuary. Sanctuary is a community-building project, not just a law.”
Singh notes that audits are just one form of attack by the Trump administration on immigrant workers. “A lot of young workers who qualified for DACA [Deferred Action for Childhood Arrivals] are in our workforce and workplaces now,” he says. “If Trump cancels their status, they lose the right to work and can be deported. We've also tried to rally people to oppose Trump's cancelling TPS [Temporary Protected Status] for Central Americans and Haitians. That is a workplace issue for us too, with a real impact on our families.”
The industry in California most vulnerable to workplace enforcement is agriculture. Over 700,000 people work in the state's fields at peak employment, and according to the U.S. Department of Labor, about 55 percent are undocumented.
On February 1, workers at Bee Sweet, a large citrus grower near Fresno, were notified that ICE was auditing company records. They were given five days to verify their immigration status. According to Manuel Cunha, president of the Nisei Farmers League, audits are going on at seven other San Joaquin Valley farms.
Of Bee Sweet's 500 workers, at least 40 left their jobs when they learned of the ICE inspection. Company president Jim Marderosian says he was audited once before in 2013, when he fired 150 employees. “What good does it do to make these workers lose their jobs?” he told the Fresno Bee. “Some way or another, they are going to have to feed their families.”
On February 6, community activists from Faith in the Valley held a rally outside the Bee Sweet packing shed. Stan Santos, a member of Communications Workers of America Local 9408, represented the local labor council in supporting the workers, who have no union. “People are very scared,” he charges. “Since ICE has all the records, they know where people live. Some workers are afraid they'll be visited at home.” In Trump-era ICE raids, when agents show up at the door looking for one person, they often interrogate and then detain other family members as well.
“Creating fear and anxiety is the biggest impact on workers,” according to Armando Elenes, vice-president of the United Farm Workers. “People get afraid to demand their rights, or even just to come to work.” The UFW spearheaded the successful effort to win a law in California last year giving farm workers the same overtime protection other workers have had since the 1930s.
“Growers fought us hard on that one,” he says bitterly, “and were happy to contribute a lot of money to Trump and to the Republicans who still represent the San Joaquin Valley in Congress. Now they complain about immigration enforcement, but they're reaping what they sowed. Unfortunately, the real impact is felt by the workers, not the growers.”
Immigration enforcement in the fields, however, is connected to the growing push among Republicans in Congress to relax worker protections on the H2-A visa program, which allows growers to recruit workers from other countries to work in U.S. fields., with few protections. (If those workers complain about violations of their labor rights, they can be, an almost always are, deported.) The U.S. issued 160,000 H2-A visas in 2016 last year, mostly from Mexico, and growers were expected to bring over 200,000 workers in 2017. “There's a huge explosion in California,” Elenes says. “ICE does audits and raids, and then growers demand changes that will make H2-A workers even cheaper, by eliminating wage requirements or the requirement that they provide housing. Reducing the available labor and the increased use of H2-A are definitely connected.”
One bill, introduced last year by Representative Bob Goodlatte would allow guest worker recruitment without contracts guaranteeing wages, housing or transportation costs, as the current program requires. It would cap the number of such workers at half a million. Another, by Representatives Chris Collins and Elise Stefanik would put the H2-A program under the Department of Agriculture, with much more grower-friendly enforcement of minimal worker protections. A third, by Representative Rick Allen would limit guest worker wages to 115 percent of the minimum wage.
“Growers don't want to look at how they can make the workplace better and attract more workers. They just want what's cheaper for them,” Elenes charges.
Singh outlines the basic elements of change supported by his union, UNITE HERE: “We need to protect family reunification and an amnesty for people without papers,” he says. “But we need deeper changes beyond that. Employer sanctions, which set up workplace audits and raids, need to be abolished because they criminalize work. And most important, we have to deal with the root causes of migration. The poverty and violence that forced Haitians to come still exist. Trade agreements like CAFTA and NAFTA still push people from Mexico and Central America. Mass deportations just deepen this crisis. We can't look at immigration policy in a vacuum.”
No one knows better than union activists that there’s zero chance for this kind of basic immigration policy reform in the present Congress, especially with Trump as president. But many caution that fighting the immediate audits and raids has to be connected to a longer-range direction and goal. “Right now it's a free-for-all, and they're coming after all workers,” Huber says. “So we have to educate people, hand out know-your-rights materials, and provide legal aid. But we also send people to D.C. to lobby on TPS, for instance. We supported shutting down the government to win protection for DACA recipients. We have to keep firm in our political efforts.”
“Basically, we need to protest,” Patrick-Knox concludes. “With the Republicans controlling Congress, we aren't going to get basic reforms now. But political protest will make a difference, and can help swing things back. Change, when it comes, can happen quickly.”