1

Testimony of Jonathan P. Hiatt

Before the U.S. House of Representatives Committee on the Judiciary

Subcommittee on Immigration, Citizenship, Refugees, Border Security, and

International Law

May 24, 2007

Madam Chairwoman, members of the subcommittee, thank you for inviting me to

testify before your committee on the labor movement’s view of immigration reform.

My name is Jonathan Hiatt, and I am General Counsel to the American Federation

of Labor and Congress of Industrial Organizations (AFL-CIO), which is a voluntary

federation of 55 national and international labor unions. Members of unions affiliated

with the AFL-CIO are construction workers, teachers and truck drivers, musicians and

miners, firefighters and farm workers, bakers and bottlers, engineers and editors, pilots

and public employees, doctors and nurses, painters and laborers – and more. The AFLCIO

was created in 1955 by the merger of the American Federation of Labor and the

Congress of Industrial Organizations. Since its founding, the AFL-CIO and its affiliate

unions have been the single most effective force in America for enabling working people

to build better lives and futures for their families.

The AFL-CIO has been involved in the struggle on behalf of immigrant workers’

rights for decades. In 2000, the AFL-CIO Executive Council adopted an historic

resolution that, for the first time, called for legalization of the undocumented population

and welcomed immigrants, regardless of immigration status, into the labor movement.

Since then, we have continually supported comprehensive immigration reform,

which is now long overdue. The current system is a blueprint for exploitation of workers,

both foreign-born and native, and is feeding a multimillion-dollar criminal enterprise at

the United States-Mexico border.

Our failed immigration system has created a two-tiered society. Today, there are

approximately 12 million undocumented immigrants in the United States, with a net

annual increase in the 1990s of approximately 500,000 persons.1 It is estimated that 80

percent of those persons are working.2 Undocumented workers have no social safety net

1 Jeffrey S. Passel, Size and Characteristics of the Unauthorized Migrant Population in the U.S., (Pew

Hispanic Trust: 2005), at 1, 10. In the decade 1995-2004, 700-750,000 persons entered the U.S. unlawfully

or overstayed a visa, id. at 6, but approximately 200,000 died, departed, or regularized their status each

year, yielding a net increase in the undocumented population of approximately one-half million persons

annually. Jennifer Van Hook, et al., Unauthorized Migrants Living in the U.S.: A Mid-Decade Portrait

(MPI: 2005), at 2 (estimating that in 1995-2004, 200,000-300,000 undocumented immigrants “leave the

United States, die, or become legal immigrants”)

2 Id.

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(other than emergency medical services), and do not have the protections of U.S. labor

and employment laws. Protections against discrimination, for example, are not available

at all to undocumented workers in parts of the United States.3 The result of our failed

immigration system is that there are two classes of workers, only one of which can

exercise workplace rights. As long as this two-tiered system exists, all workers will

suffer because employers will have available a ready pool of labor they can exploit to

drive down wages, benefits, health and safety protections and other workplace standards.

The AFL-CIO’s answer to the “immigration crisis” is to reform immigration law

in a way that places workers’ rights at the forefront, and ensures that we will be able to

take control of our borders by removing the economic incentives to exploit immigrant

workers that are currently driving illegal migration.

Our approach has three core principles: (1) the law must provide a real

mechanism by which all undocumented workers can regularize their status; (2) foreign

workers must hereafter come into the United States with full and equal access to

workplace protections, which means that future flow needs should not be met by

temporary worker programs; instead, Congress should reform the employment-based

permanent visa system to tie the number of visas available to real economic indicators;

and (3) enforcement of labor laws must go hand-in-hand with enforcement of

immigration laws.

The Law Must Provide a Clear Path to Legalization

First, the law must provide a real mechanism so that all undocumented workers

can regularize their status. Undocumented workers face serious obstacles in enforcing

their labor rights. In addition to language and cultural barriers, workers’ lack of formal

status forces many of them to work in substandard conditions, because they fear that if

they report violations, they will face deportation. Unfortunately, that fear is all too real.

In a well-publicized case in Minneapolis in 1999, workers at the Holiday Inn

Express voted in favor of union representation in a National Labor Relations Board

(NLRB) election. Days later, the manager called eight of the workers, all Mexicans, into

the office, where the workers were met by immigration authorities, who asked them

whether they had “papers.” When the workers admitted that they did not, they were

handcuffed and taken to an INS detention facility.4

That scenario is not uncommon. “Undocumented” status has given employers,

and their counsel, a powerful tool to use in their attempts to repress worker rights. A

recent report by Human Rights Watch that focused on the meatpacking industry, which is

known to employ undocumented workers, found that many employers take advantage of

3 In the Fourth Circuit, which covers Maryland, Virginia, West Virginia, North Carolina and South

Carolina, undocumented workers have no standing to bring complaints under Title VII. See Egbuna v.

Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998).

4 Illegal Immigrants Help Unionize a Hotel but Face Deportation, NY Times, Jan. 12, 2001, A24 col. 1.

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workers’ fear of drawing attention to their undocumented status “to keep workers in

abusive conditions that violate basic human rights and labor rights.”5

That tool was made even more powerful by the Supreme Court, in Hoffman

Plastic Compounds v. NLRB6, when it held that undocumented workers are not entitled to

backpay, the National Labor Relations Board’s traditional remedy. This holding has, in

practice, made it much more difficult, and in some cases impossible, for an entire class of

workers to exercise the right to join a union and bargain collectively.

A group of Spanish-speaking mineworkers in Utah learned that lesson first-hand,

when they attempted to organize the Kingston Co-Op Mine in 2003. Workers at that

mine earned $5.25-$8.00 per hour, with virtually no health care or other benefits,

substantially less than the approximately $20 per hour that unionized mine workers earn.7

Many of the workers had worked for the Company for many years, and some had

returned to Mexico annually. There is evidence that Company representatives had

assisted some of the workers to come into the United States to work, and turned a blind

eye to the workers’ lack of work authorization, until the workers began to organize.

As is common in organizing campaigns, just prior to the union election, the

employer sent a letter to most of the workers who would be voting, requiring the workers

to provide proof of work authorization. The employer then fired some of the workers,

ostensibly for their failure to provide adequate proof of work authorization.

The union filed charges with the NLRB alleging that the employer had fired the

workers in retaliation for their attempt to join a union. Even though the Board found

merit to the charges, it refused to seek reinstatement or back pay for the great majority of

the workers because the Board determined that the workers lacked work authorization.8

Undocumented status has also resulted in denial of protections afforded to

workers under state laws, further exacerbating the creation of a two-tiered workforce.

Following the Hoffman decision, several states have limited or eliminated such basic

workplace protections as compensation for workplace injuries and freedom from

workplace discrimination.9 These rights and remedies are in some instances the only

protections available to workers. 10

5 Lance Compa, Blood, Sweat and Fear: Workers’ Rights in U.S. Meat and Poultry Plants, (Human Rights

Watch: Jan. 2005), available at http://www.hrw.org/reports/2005/usa0105/.

6 535 U.S. 137 (2002)

7 Effective January 1, 2006, hourly wages for underground bituminous coal miners as set forth in the

National Bituminous Coal Wage Agreement ranged from $19.35-$20.42.

8 C. W. Mining Co. a/k/a Co-Op Mine, NLRB Case Nos. 27-CA-18764-1; 27-CA-19399; 27-CA-19453-1;

27-RC-8326; 27-CA-19481-1; 27-CA-19529.

9 See, Crespo v. Evergo Corp., 366 N.J. Super. 391 (App. Div. 2004), cert. denied, Crespo v. Evergo Corp.,

180 N.J. 151 (2004) (holding that an undocumented worker suing for discriminatory termination could not

recover either economic or non-economic damages absent egregious circumstances such as extreme sexual

harassment); The Reinforced Earth Co. v. Workers’ Compensation Appeal Board, 810 A.2d 99 (PA 2002)

(holding that injured worker is entitled to medical benefits, but illegal immigration status might justify

terminating benefits for temporary total disability); Sanchez v. Eagle Alloy, 254 Mich. App. 651

(2003)(Undocumented workers are covered by the state’s workers compensation system, but time loss

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In fact, some state laws now essentially reward employers for suddenly

“discovering” that a worker is unauthorized, thus releasing the employer or workers’

compensation insurance carrier from any back pay or front pay obligation. In Michigan,

for example, workers who are injured on the job and who used false documents to secure

employment are not entitled to wage loss benefits. Employers are free to “discover” the

workers’ use of false documents after the worker is injured, which has encouraged

employers to investigate the workers’ documentation only after an injury occurs.11

Workers’ rights are being chilled in other equally troubling ways. For example,

an Assistant United States Attorney in Kansas has been encouraging employers,

insurance companies and others to verify injured workers’ immigration status after

workers file a workers’ compensation claim, and refer those cases to his office for

prosecution for document fraud. That has resulted in the injured workers being deported

and thus unable to pursue workers’ compensation claims.12

Workers who try to vindicate their rights through private labor and employment

law enforcement, that is, by filing lawsuits, are facing similar obstacles. Employers and

their counsel often seek discovery of the immigrant-plaintiffs’ immigration status,13 an

action that serves to chill immigrants’ willingness to pursue their workplace rights.14

In one outrageous but not uncommon case, forestry workers in Virginia brought

an action alleging violations of minimum wage and overtime laws, as well as state claims

related to their housing conditions: they were forced to live in a warehouse surrounded by

barbed wire, were locked into the warehouse at night, and had a substantial portion of

their pay check deducted to cover their substandard housing. During the plaintiffs’

deposition, which was conducted at the employer’s office, the employer’s counsel asked

the plaintiffs whether they had a valid work permit. When counsel for the plaintiffs

objected, the employer asked for a break. A short time later, the local police arrived, and

benefits are suspended from time that unlawful status is discovered); Tarango v. State Industrial Insurance

System, 25 P.3d. 175 (NV 2001) (workers’ compensation laws apply to all workers regardless of

immigration status, but undocumented worker not entitled to rehabilitation benefits); Cherokee Industries,

Inc. v. Alvarez, 84 P.3d 798 (OK 2003)(same).

10 Workers often have no choice but to turn to state law for protection. For example, federal antidiscrimination

laws only protect employees working for employers who employ at least 15 employees. 42

U.S.C. § 2000e(b). State discrimination laws often protect employees working for employers with fewer

employees. See, Cal. Gov Code § 12900 (2007)(any employer five or more employees subject to

provisions); ORS § 659.001 (2005)(employer with one or more employees subject to provisons); Rev.

Code Wash. (ARCW) § 49.60.040 (2007)(eight employees).

11 Sanchez, 254 Mich. App. at 671-672.

12 See Brent I. Anderson, The Perils of United States Employment for Falsely Documented Workers (and

whatever you do, don’t file a work comp claim), paper submitted to American Bar Association, Labor and

Employment Law Workers’ Compensation Committee Midwinter Meeting (March, 2006).

13 See e.g. Morejon v. Terry Hinge and Hardware, 2003 WL 22482036 (Cal. App. 2 Dist., 2003); de Jesus

Uribe v. Aviles, 2004 WL 2385135 (Cal. App. 2 Dist. 2004); Veliz v. Rental Service Corporation USA, Inc.,

313 F.Supp.2d 1317 (2003); Hernandez-Cortez v. Hernández, 2003 WL 22519678 (D. Kan. 2003).

14 See Rivera v. NIBCO, Inc., 364 F3d 1057 (9th Cir. 2004), cert. denied, NIBCO, Inc. v. Rivera, 544 U.S.

905 (2005) (declining to order disclosure of immigration status and noting chilling effect).

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asked the workers whether they were illegal aliens. When the workers refused to answer

– per the instructions of counsel – the police together with the employer called the

Department of Homeland Security (DHS), whose agents arrived at the facility about two

hours later. Thanks to the intervention of lawyers from around the country, the plaintiffs

were able to convince DHS that this was a labor dispute in which it should not be

involved, and the agents left.15 However, the chilling effect of the employers’ actions

was felt by the remaining plaintiffs.

Under current law, the exploitation of undocumented workers is economically

attractive. The law has strengthened the perverse economic incentive that employers

have to violate immigration laws. As long as employers have access to a class of workers

that they can prevent from exercising labor rights by merely asking a simple question: do

you have papers?, the incentive to exploit will continue.

One key to removing that incentive is to regularize the status of the

undocumented population. In order to be effective, a legalization program must be

inclusive, practical and swift.16 Any program that denies a substantial number of workers

the ability to adjust their status, either by including burdensome requirements or fees and

fines that are outside the reach of the undocumented workers, will exclude millions of

workers. A program must also be practical in order to encourage people to come out of

the shadows, and it must be implemented quickly. A program that does not meet these

criteria will perpetuate a two-tiered system that operates to the detriment of all workers in

the U.S., because having a large secondary class of workers who cannot exercise

workplace rights enables employers to drive down wages, benefits, health and safety

protections and other workplace standards across the board.

Unfortunately, the current legislative proposals do not satisfy this first principle.

The Security Through Regularized Immigration and Vibrant Economy Act of 2007, the

“STRIVE” Act, contains a “touch back” provision that would require workers to leave

the United States before they qualify for permanent status. That provision discourages

workers from applying for legalization for several reasons. Many workers fear that they

would not be able to return if they were required to leave the country, and would opt to

remain in undocumented status. Others will likely lose their jobs, given that it is unlikely

that employers will hold open jobs for those who are “touching back.”

We understand that politics are pushing legislators to take a punitive approach to

legalization. The “touch back” provision is one example. We urge Congress to rethink

that approach, because it is not only punishing the undocumented, but also creating

obstacles to having one class of workers in the country, with equal rights for all.

Future Foreign Workers Must Come into the U.S. with Full Rights.

15 Ana Avendaño and Marielena Hincapie, The Rollback of Immigrant Workers’ Civil Rights, Awakening

from the Dream (Carolina Academic Press: 2005).

16 See Ray Marshall, Getting Immigration Reform Right, (Economic Policy Institute: 2007), at 6.

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A second guiding principle in AFL-CIO’s immigration policy is that workers who

come to the United States in the future to fill actual labor shortages should enter with full

rights. Current legislation addresses the influx of future workers through guest worker

programs or, as they are now sometimes called, “worker visa programs.” That is a

framework driven entirely by the desire of some in the business community to have a

constant and exploitable pool of workers.

Proponents of these temporary worker programs claim that they need guest

workers to do the jobs that Americans will not do. However, the reality is that there are

no jobs that Americans will not perform if wages and other working conditions are

adequate. There is no industry in the United States today that relies entirely on foreign

workers, and of 473 occupational titles, only four are even majority foreign-born-- stucco

masons, tailors, produce sorters and beauty salon workers.17 The industries in which the

undocumented predominately work – hospitality and janitorial, services, construction,

landscaping, meatpacking and poultry, for example – are all staffed by a great majority of

U.S. workers.18 More than 80% of workers in construction and in the janitorial industries

are U.S. citizens or lawful permanent residents.19 The truth is that the business

community wants guest workers to fill these jobs because that will allow it to fill

permanent, year-round jobs with exploitable temporary workers. The result will be an

even further depression in wages, particularly in the low-wage labor market.

A recent report by the non-partisan Congressional Research Service concluded

that a guest worker program such as the one approved by the Senate in the 109th Congress

(S. 2611) “could be expected to lower the relative wages of competing [U.S.] workers,”

and would have the greatest impact on young native-born minority men and on foreignborn

minority men in their early working years.20 Notably, the size of that guest worker

program (capped at 200,000 visas annually) is less than half the size of current proposed

programs.21 Logic dictates that the impact on those workers would be even more

profound if a larger program were implemented.

In order to mitigate the negative labor market impact of guest worker programs,

longstanding United States guest worker policy requires that temporary workers should

be used only to satisfy short-term or seasonal labor needs. The H2-A agricultural guest

worker program, the best known of these programs, is designed to satisfy seasonal needs,

requiring large numbers of workers during the growing season, which may be as short as

6 weeks. Similarly, the H2-B program allows non-agricultural employers in industries

such as landscaping, hospitality and crabbing, to hire non-U.S. workers on a temporary

basis to fill their seasonal needs.

17 Id at p 3.

18 Passel, supra, fn. 1 .

19 http://www.bls.gov.

20 Gerald Mayer, CRS Report RL33772, The Comprehensive Immigration Reform Act of 2006 (S. 2611):

Potential Labor Market Effects of the Guestworker Program, December 18, 2006.

21 The STIVE ACT provides for 400,000 visas in the first year, increasing based on employer demands to

600,000.

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The United States has been experimenting with temporary worker programs for

almost a century, without a single success.22 The most famous of those experiments, the

Bracero program, began in 1942 as an agreement between the United States and Mexico

to address the labor shortages in agriculture and in the railroad industry. More than four

and a half million Mexican workers toiled in the United States under the program

between 1942 and 1964. Once the contract period ended, however, they were required to

turn in their labor permits and leave the United States with no right to long-term or

permanent residence.

The failure of guest worker programs has been recognized by every single

Congressional Committee that has studied them. For example, in 1977, the Carter

Administration included a recommendation in its immigration reform package that a

temporary worker program should be given a comprehensive review. The Carter

Administration distanced itself from the failed Bracero program – much like all the

proponents of current guest worker proposals are doing in the current legislative cycle –

but implied that a new framework for a temporary worker program might meet the needs

of business while not causing a detrimental impact on wages and working conditions for

workers already in the U.S.23 The Commission for Manpower Policy, responding to

President Carter’s charge, disagreed, and concluded after a detailed study that it was

“strongly opposed” to any expanded temporary worker program because such programs

depress wages and increase the population of undocumented workers.24

Similarly, the “Jordan Commission,” which was created by the 1986 Immigration

Reform and Control Act to study the nation’s immigration system squarely rejected the

notion that guest worker programs should be expanded. In its 1997 final report, that

Commission specifically warned that such an expansion would be a “grievous mistake,”

because such programs have depressed wages, because the guest workers “often are more

exploitable than a lawful U.S. worker, particularly when an employer threatens

deportation if workers complain about wages or working conditions," and because "guest

worker programs also fail to reduce unauthorized migration" [in that] "they tend to

encourage and exacerbate illegal movements that persist long after the guest programs

end." 25 In fact, there is not one publicly funded, nonpartisan study that has found any

merit in guest worker programs.26

22 The Immigration Act of 1917 (one of the most restrictive pieces of immigration legislation in U.S.

history) included a temporary farm worker program, which lasted until 1922. The program allowed

employers to import almost 77,000 workers into the US, fewer than half of whom returned to Mexico once

the program was suspended. Vernon M. Briggs, Jr., Non-Immigrant Labor Policy in the United States,

Journal of Economic Issues, Vol. XVII, No. 3, Sept. 1983.

23 Briggs at 621.

24 Id.

25 See United States Commission on Immigration Reform, Becoming an American: Immigration and

Immigration Policy, United States Commission on Immigration Reform, 1997. An earlier well-known

Commission--the Select Commission on Immigration and Refugee Policy (SCIRP)--chaired by Rev.

Theodore Hesburgh had reached the same conclusions. See, National Commission on Immigration and

Refugee Policy, United States Immigration Policy and the National Interest: Final Report. National

Commission on Immigration and Refugee Policy, 1981.

26 By contrast, business groups and political right-wing groups have found common ground. See Tamar

Jacoby and Grover Norquist, Hard Lines Don’t Speak for GOP, Miami Herald, December 19, 2005.

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Proponents of the latest breed of guest worker programs have distanced

themselves from the discredited Bracero and other past programs by labeling the new

proposals as “break-the-mold” programs. Yet, the new proposed programs offer even

fewer protections to workers than those provided in the Bracero program. Braceros, for

example, were entitled to free housing, medical treatment, transportation, and pre-set

wages that were at least equal to those of U.S. citizen farm workers, and a contract in

Spanish. Despite these protections, Braceros experienced numerous abuses, including

racial oppression, economic hardship, and mistreatment by employers, and the program

also had a well-documented downward effect on the wages of U.S. citizen farm

workers.27 The new guest workers, who would not even have the promise of such

protections, can fare no better.

The H1-B program, which Congress created in 1990 to ease the claimed

temporary shortage of skilled workers in the high technology field, also shows why this

new approach is flawed. In 1998, as a temporary remedy for a claimed desperate labor

shortage in the high technology field, Congress nearly doubled the number of H1B visas

available for the following three years, and imposed a fee on employers that was meant to

fund training programs to improve the skills of U.S. workers. More than fifteen years

after the inception of the H1-B program, employers continue to call for more H1B visas,

while little effective training of U.S. workers has been accomplished, and wages and

other conditions in the industry have deteriorated.28

One of the fundamental flaws in the H1-B program is that it does not test the U.S.

labor market. As the DOL acknowledges on its own website, “H1-B workers may be

hired even when a qualified United States worker wants the job, and a United States

worker can be displaced from the job in favor of the foreign worker.”29 Employers are

simply required to file an attestation of the wages and working conditions offered to the

H1-B workers with the Department of Labor’s Employment and Training Administration.

The Department of Labor has no authority to verify the authenticity or truthfulness of the

information; the Department can only review the application for omissions and obvious

inaccuracies.30

The United States Government Accountability Office (GAO) concluded last year

that the DOL was failing even in that minimal task.31 For example, from January 2002

through September 2005, DOL electronically reviewed more than 960,000 applications

27 See Ernesto Galarza, Merchants of Labor: The Mexican Bracero Story (Rosicrucian Press 1964).

28 See “H1-B Foreign Workers, Better Controls Needed to Help Employers and Protect Workers,” HEHS-

00-157 (September 2000); “High Skill Training Grants from H1B Visa Fees Meet Specific Workforce

Needs, but at Varying Degrees,” GAO-02-881 (September 2002); "The State of Asian Pacific America,"

Paul Ong (ed.), LEAP Asian Pacific American Public Policy Institute and UCLA Asian American Studies

Center, 1994, pp. 179-180.

29 http://www.dol.gov/_sec/stratplan/strat_plan_2006-2011.htm; See also, Ron Hira, Outsourcing

America’s Technology and Knowledge Jobs (EPI Briefing Paper: 2007), p. 2.

30 8 U.S.C. § 1182(n)(1)(G)(ii).

31 H1-B Visa Program: Labor Could Improve Its Oversight and Increase Information Sharing with

Homeland Security GAO-06-720 Washington, DC: June 22, 2006.

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and certified almost all of them.32 Moreover, GAO found over 3,000 applications that

were certified even though the prevailing wage rate for the application was lower than

what is required by statute, in some cases, more than $20,000 lower than what is required

by law.33

The H1-B program was enacted to fill a spot labor shortage, while workers in the

U.S. obtained adequate training and education in high tech and professional jobs. In

reality, the poor design of the H1-B program has failed to meet the training objectives,

and instead has facilitated and accelerated the outsourcing and offshoring of jobs. The

largest users of the H1-B program are outsourcing firms, whose business is to move jobs

overseas.34 These firms import H1-B workers, train them in U.S. companies, and then

send the workers back home, taking with them the jobs that they were previously doing in

the United States.35 In fact, in many instances, U.S. workers were forced to train their

H1-B replacements.36

The nation’s experience with the H2-B program, aimed at low-wage seasonal

jobs, is also instructive, particularly because the new proposed guest worker programs are

aimed at much the same population of workers, and in fact, are modeled on the H2-B

program. In practice, the H2-B program is rife with abuses. Workers on H2-B visas are

particularly vulnerable because they tend to be isolated, transient, non-English-speakers

unfamiliar with U.S. laws. Like the workers who would come into the United States

under the proposed new programs, H2-B workers have little access to legal services

because the Legal Services Corporation (LSC)-funded attorneys are generally not

permitted to represent H2-B workers, and very few states have unrestricted legal services

offices that represent H2-B workers.37

A recent report by the Southern Poverty Law Center exposes the substantial

current exploitation of workers in temporary worker programs.38 For workers who toil in

those programs, that exploitation begins at home, where workers are usually recruited by

labor contractors who require that workers pay a sizeable fee for the opportunity to work

in the programs. Guatemalan workers, for example, are charged as much as $5,000 by

the recruiters, and it is not uncommon for workers in Asia to pay as much as $20,000 for

their guest worker visas. Workers who are recruited into these programs are often poor,

and are forced to turn to loan sharks in order to finance the recruiters’ fees. Workers are

also often required to leave behind with an agent of the employer or recruiter collateral,

such as a deed to a home or a car, to ensure that workers will comply with the terms of

their contracts. The result is that workers arrive in the United States so heavily indebted

that they can not leave their jobs, even if the law allowed them to do so.

32 Id.

33 Id. at 14.

34 Ron Hira, Outsourcing America’s Technology and Knowledge Jobs, supra n. 31.

35 Id.

36 See, Too Many Visas for Techies? U.S. workers gripe that lax rules may cost them their jobs, Business

Week, August 25, 2003.

37 See 45 C.F.R. § 1626.1 et seq.

38 Mary Bauer, Close to Slavery, Guestworker Programs in the United States, Southern Poverty Law

Center, 2007, available at www.splcenter.org.

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Once in the United States, guest workers have few labor protections. A major

flaw in current guest worker programs is that there is no effective means to enforce the

requirements of the program. Even though the current H2-B program requires that

employers pay the “prevailing wage,” that requirement is often ignored, with impunity.39

The DOL has determined that it has no authority to enforce the conditions in the

employer’s applications for guest workers, nor the ability to enforce the terms of

workers’ contracts.40 Therefore, workers who are not being paid, or are being paid below

the prevailing wage, have no way to enforce those provisions other than through private

law suits, which are expensive.

Guest worker programs also allow employers to evade U.S. anti-discrimination

laws altogether. Current law allows recruiters and labor contractors to discriminate based

on gender, age, and presumably any other category protected under U.S. laws, as long as

that conduct takes place outside the United States.41 If an applicant in the United States

is denied a job on the basis that he or she is over 40 years old, and the application was

made within the United States, the employer would be violating the Age Discrimination

in Employment Act (ADEA)42 and the worker could sue to recover damages and to

enjoin the employer’s practice. However, if the employer is applying that practice just

across the border in Mexico, and hiring workers who will be entering the United States

through a guest worker program, then U.S. laws do not stop that employer from freely

discriminating because courts have concluded that our employment laws do not cover

conduct outside the United States.

Before Congress expands or creates yet another guest worker program, it must

address the flaws in the current programs.

First, Congress must build protections into the infrastructure of the programs that

protect against worker abuse. At a minimum, for-profit labor contractors should not be

permitted to participate in any temporary worker programs. Only the end-use employer

should be able to petition for workers, and employers should be banned from using forprofit

foreign labor contractors in the process.

Another fundamental protection that any temporary worker program must provide

is an effective mechanism to test the U.S. labor market through a rigorous labor

certification process before allowing employers to bring in foreign workers. Attestation

programs, which essentially allow employers to monitor themselves, do not protect

workers.

39 Id.

40 See, DOL General Administrative Letter No. 1-95.

41 See, Reyes-Gaona v. NC Growers’ Ass’n, 250 F.3d 861 (4th Cir. 2001)

42 The ADEA makes it unlawful “for an employer” to “fail or refuse to hire” or “otherwise discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s age.” 29 U.S.C. § 623(a)(1).

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We believe that there should be a “two-test” principle for labor certification: a

finding that there are no U.S. workers available to fill the position and another that

granting certification will not depress the standards of, or otherwise cause harm to U.S.

workers. This principle applies to all guest worker programs, whether high skill or lowwage.

A rigorous labor certification process must accurately determine labor shortages,

include adequate wage protections, guard against the displacement of U.S. workers, and

provide an adequate system for advertising jobs beyond the local labor market. We

believe that state Employment Security Agencies must be an integral part of the process,

given that they are best positioned to analyze employers’ need for foreign workers,

provide assistance to employers regarding the recruitment of U.S. workers, and determine

the prevailing wages.

The trigger for any temporary worker program visas should be based on a

thorough and adequately funded labor certification process that includes mandatory

public posting of the jobs with the state Employment Service, so that the state agencies

can review job postings against the visa applications received. Because state

Employment Security Agencies are uniquely linked, workers in Kansas can learn that

there are openings in landscaping jobs in Iowa, for example, and should be able to apply

for those jobs before employers are allowed to import workers.

One of the fundamental flaws of temporary worker programs is that they give

employers tremendous control over workers because if a temporary worker loses his or

her job, he or she is faced with the choice of leaving the United States or becoming

undocumented. Workers do not want to face that choice, and therefore, they do not

complain about workplace violations. Two fundamental changes to current programs

must be enacted to mitigate this chilling effect: (1) Congress should provide meaningful

whistleblower protections, so that workers who expose workplace violations and as a

result are fired, do not have to face immediate removal; and (2) workers should have the

ability to leave unsatisfactory jobs without having to face the choice of departing the

United States or becoming undocumented.

Such appropriate “portability”, however, should not allow a subsequent employer

to avoid the requisite labor market testing and certification, since otherwise the essential

fundamental labor protections will be undermined. Workers in any non-immigrant

category (that is, temporary), and especially those in the low-wage labor market, will

always face pressure to find a new job quickly, because by definition, they are not

entitled to unemployment insurance or any other safety net benefits. If subsequent

employers do not have to test the labor market and therefore are not subject to prevailing

wage standards, those employers will be able to employ the temporary foreign workers at

substandard wages and working conditions. Therefore, portability must come with a

requirement that every subsequent employer undergo the same U.S. labor market testing

and certification process before hiring a foreign temporary worker. The H1-B program

currently includes this framework or portability, but given that H1-B employers are not

12

required to test the U.S. labor market to begin with, the H1-B program does not serve as

the model of portability.

As discussed above, another flaw of guest worker programs is that they allow

U.S. employers to discriminate based on race, gender, age, and national origin, which is

outlawed in the U.S.43 Discrimination in relation to jobs that are performed in the United

States should not be tolerated no matter where it occurs. Congress must specify that Title

VII, Section 1981, the ADEA, and all other U.S. employment and labor laws govern the

conduct of any employer or other labor recruiter who participates in any temporary

worker program, even if the conduct occurs outside the United States.

Congress should also specify that workers who labor in temporary worker

programs are entitled to workers’ compensation coverage and full remedies, even if they

leave the U.S. after they are injured on the job. Current law makes it practically

impossible for guest workers who are injured on the job to exercise their rights under

workers’ compensation laws because injured workers are forced to leave the program and

return to their home country, or become undocumented.

Statutory labor protections are only as good as their enforcement mechanism.

Guest workers face particular difficulties in enforcing their labor rights. Workers often

have little education, do not understand the U.S. legal system, have no access to legal aid

lawyers, and have great difficulty in finding private lawyers to represent them. Requiring

that employers post a bond that is at least sufficient in value to cover the temporary

workers’ legal wages, and crafting a system to allow workers to make claims against the

bonds would make it easier for workers to collect the money they are owed.

Further, a robust remedial scheme is key to discouraging illegal conduct by

employers. Penalties for violations of the terms and conditions of temporary worker

programs should be strengthened and must include remedies that are real deterrents,

including employer debarment. Enhanced monetary penalties such as punitive damages

and compensatory damages should also be provided. All of these remedies must be

available to workers and their representatives through private rights of action, as well as

through strengthened and adequately funded government enforcement programs.

Finally, guest workers must be able to adjust their status if they wish to do so.

This “path to permanency” is important, but it does not solve the problems that workers

face while they are laboring in the guest worker programs. In other words, if the H2-B

program were to continue with all its current flaws, and Congress simply added a

provision that would allow H2-B workers to adjust their status after laboring in H2-B

status for a certain number of years, that “path to permanency” would do nothing to fix

the problems with recruiters, non-payment of wages, or the inability of H2-B workers to

exercise labor rights. All that such a “path to permanency” would do is limit the number

of years that the particular workers in question are exploited. It would not remove in any

way the attraction for employers to use an ever-changing source of foreign workers to

depress wages and other labor standards.

43 See Reyes-Gaona v. NC Growers’ Ass’n, 250 F.3d 861 at 865.

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The STRIVE Act, unfortunately, provides virtually none of the guest worker

program protection recommended above. It greatly expands the number of guest workers

that employers are allowed to import every year, and is modeled on the failed and flawed

H2-B program. The STRIVE Act is not limited to seasonal jobs, which means that it is

expanding significantly the types of jobs that employers would be able to fill with easily

exploitable temporary foreign workers, and for the first time opening up permanent jobs

to temporary guestworkers. Under the STRIVE Act, employers would be able to import

foreign temporary workers to perform all kinds of permanent jobs that don’t require a

college degree, such as grocery store clerks, a host of construction jobs, janitors, poultry

workers, and truck drivers, just to name a few.

The huge expansion of guest worker programs contemplated by current legislation

will not only harm United States workers, but also represents a radical and dark departure

from our long-held vision of a democratic United States society. We are not a nation of

“guests,” who, by definition, have only short-term and short-lived interests, but a nation

of people who believe in investing in our communities, in our future, and in our

democracy.

In the AFL-CIO’s view, there is no good reason why any immigrant who comes

to this country prepared to work, to pay taxes, and to abide by our laws and rules should

be denied what has been offered to immigrants throughout our country’s history: a path to

legal citizenship. To embrace instead the creation of a permanent two-tier workforce,

with non-U.S. workers relegated to second-class “guest worker” status, would be

repugnant to our traditions and our ideals and disastrous for the living standards of

working families.

Instead we should revise the current immigration law in a way that guarantees full

labor rights for future workers and reflects real labor market conditions by restructuring

the current permanent employment visa category. Under current law, Congress has set an

arbitrary cap of 140,000 permanent visas (green cards). We propose that the number be

adjusted to reflect real employer needs for long-term labor shortages. Employers should

be required to test the labor market by first offering jobs to workers who are already in

the United States at wages that are attractive to U.S. workers. If there are no workers

inside the United States available to fill the job, then the employer should be able to hire

a foreign worker and sponsor him or her for a green card. The number of such visas

should be tied to real economic indicators that reflect true labor shortages.

The proponents of guest worker programs offer no valid explanation as to why, as

a matter of public policy, the permanent system we advocate is not the preferred model.

The most common argument they make is that there are new circular migration patterns

and workers who come here may not want to stay forever. There is nothing in our

proposal, or in current law, that requires that workers who come to United States must

stay here. The difference between the AFL-CIO framework and the guest worker

framework is that under our model, the workers who don’t want to stay here forever have

full worker rights while they work here. Subjecting workers to diminished labor rights

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and protections simply because they will suffer those conditions only temporarily is not

sound public policy. Nor is it just.

Immigration Laws Should be Enforced in Tandem with Labor Laws

The third guiding principle in the AFL-CIO’s approach to reform is that

enforcement of labor laws must go hand-in-hand with enforcement of immigration laws.

Enforcement of immigration laws alone has failed to stem the tide of illegal immigration.

The current mechanism for enforcement of those laws in the workplace – the “employer

sanctions” provisions included in the Immigration Reform and Control Act of 1986

(IRCA)44 – completely ignores enforcement of labor and employment protections.

Instead, the IRCA adopted the very same focus that the current legislative proposals have

taken on: punishment (fines) for employers who knowingly hire and continue to employ

undocumented workers. Such sanctions have failed to curtail illegal immigration. In

fact, they may well have accomplished the opposite, given that sanctions have become

one of the most powerful tools that employers have to defeat workers’ attempts to

organize or to otherwise enforce their labor rights.

In adopting the IRCA, Congress acted to cut off the “job magnet” that was

causing illegal immigration by requiring, for the first time, all workers in the United

States to have permission to work in the country and obligating employers to verify that

status. Even though that law was designed to hold employers accountable for the hiring

of undocumented workers and to stop the exploitation of workers, the result has been

quite the contrary: the IRCA essentially privatized immigration policy by deputizing

employers to be agents of the immigration service. Employers have repeatedly used the

power the IRCA granted them to defeat collective action and to retaliate against workers

who attempt to enforce their labor and employment rights.

The principal study conducted on the relationship between workplace

immigration enforcement and labor disputes reveals a deep entanglement between

workplace immigration enforcement and workers’ exercise of labor rights.45 Government

data on workplaces raided in New York, one of the largest DHS districts, reveals that

55% of the workplaces raided by INS were the subject of at least one formal labor

complaint – that is, a charge had been filed with a federal or state employment or labor

agency. That figure likely underestimates the actual number of workplaces in the midst

of a labor dispute at the time of the immigration tip or raid because it does not include

informal complaints to employers, much less litigation or union grievances.46

Workplace enforcement of immigration laws without regard to workers’ rights –

as Immigration and Customs Enforcement (ICE) currently operates – lowers standards

for all workers because workers are deterred from reporting violations. ICE’s blatant

disregard of workplace standards was exposed clearly in 2005 when a group of

construction workers in North Carolina received a flyer at work, instructing them to

44 8 U.S.C. § 1105 et seq. (1986).

45 Michael J. Wishnie, Current Issues in Immigration Law, 28 N.Y.U. Rev. L. & Soc. Change 389 (2004).

46 Id.

15

attend a mandatory health and safety meeting. The flyer was printed on letterhead of the

Occupational Safety and Health Administration (OSHA). However, when the workers

arrived at the meeting, no OSHA officials were present. Rather, ICE officials were

waiting, arrested more than 20 workers and placed them into deportation proceedings.47

Effective enforcement of health and safety laws depends on workers to report

hazardous conditions. Genuine health and safety meetings, unlike the sham one that ICE

used to trap the workers, are key to that process because they enable workers to learn to

identify hazards, and to protect themselves. The chilling effect on worker rights from

these types of actions is clear.

The data on workplace enforcement of immigration laws also make clear that the

benefit to an employer from exploiting workers is far greater than his cost of violating the

immigration law. In fact, the immigration law actually gives employers a powerful

weapon to use against workers. In many instances, employers have actually called for

raids at their own workplaces, and have been able to effectively intimidate workers in the

exercise of workplace rights – from joining a union to filing health and safety claims –

without employers having to pay any meaningful penalty for their violations of

workplace or immigration laws.48 As long as unscrupulous employers continue

exploiting immigrant workers while facing no real chance of being prosecuted for

providing unsafe working conditions, or for other violations of labor laws, the rights of

all workers will be seriously undermined and illegal immigration will continue.

Moreover, enforcement of U.S. labor and employment laws has been particularly

dismal under the Bush administration, which has had an extremely negative impact on

low-wage immigrants and U.S. workers. The Department of Labor’s (DOL) own studies

conducted in 2000 (the last year such were conducted) found that 100 percent of poultry

employers were out of compliance with the minimum wage and overtime protections of

the Fair Labor Standards Act (FLSA), and as many as 50 to one 100 percent of garment

and nursing home employers were in violation of those same protections. And these are

industries in which immigrant workers are overrepresented. Yet in the face of these

wholesale violations, the Department of Labor’s resources dedicated to enforcement have

been falling for many years. For example, from 1975–2004, the budget for the DOL’s

Wage and Hour Division investigators, responsible for investigating and enforcing the

minimum wage laws, decreased by 14% (to a total of 788 individuals nationwide) and

enforcement actions decreased by 36%, while the number of workers covered by statutes

enforced by the Wage and Hour Division grew by 55%.49 Today, there is approximately

one federal Wage and Hour investigator for every 110,000 workers covered by FLSA.50

47 Steven Greenhouse, U.S. Officials Defend Ploys to Catch Immigrants, NY Times, Feb. 11, 2006, A8, col.

48 See In re Herrera-Priego (Lamb, I.J.) (NY July 10, 2003) (where employer called INS raid on itself,

during union organizing campaign).

49 Annette Bernhardt & Siobhan McGrath, Trends in Wage and Hour Enforcement by the U.S. Department

of Labor, 1975-2004, Economic Policy Brief No. 3 (New York: Brennan Center for Justice at NYU School

of Law, September 2003).

50 Id., at 2. There are nearly 88 million people covered by FLSA.

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By 2007, the DOL’s budget dedicated to enforcing wage and hour laws will be 6.1

percent less than before President Bush took office.51

Congress should opt for a far more potent “employer sanction,” one that will

remove the perverse economic incentive that is driving employers to recruit and employ

undocumented workers, and will therefore stem the tide of illegal immigration. That

“sanction” involves the vigorous and adequately funded enforcement of existing labor

and employment laws.

Conclusion

Immigration reform is an emotionally and politically charged issue that affects the

supply of labor, wage levels and working conditions for all workers, both immigrant and

U.S.-born, in the United States. Any significant changes in United States immigration

policy would deeply affect the personal and workplace lives of tens of millions of

workers and their families, whether they are citizens, legal residents or undocumented

persons. The current system does not serve us well, and the time is right to enact

comprehensive immigration reform. For such reform to be meaningful and fair, it must

be framed around workers’ rights because that is the socially, economically, and morally

right thing to do.

Thank you again for the opportunity to testify. I welcome your questions.

51 Judd Legum, Faiz Shakir, Nico Pitney, Amanda Terkel, and Payson Schwin et.al., Labor—Bush Priorities

Hurt Workers, Help Employers (Under the Radar), The Progress Report, June 14, 2006.