Last year’s U.S. Supreme Court’s decision in Arizona v. U.S. left only a narrow opening for states to pass and enforce immigration-related legislation. Nevertheless, the enactment of immigration-related state laws and resolutions in 2013 increased by 83 percent compared with the first half of 2012. California has been a leader, passing numerous laws that would benefit immigrant workers and protect labor standards for U.S. workers. Despite extensive media coverage of the TRUST Act and two other bills—one that would grant “domestic workers” overtime pay (which became law last week) and another permitting unauthorized immigrants to obtain drivers’ licenses—four others would protect the labor and employment rights of California’s unauthorized immigrant workers and temporary foreign workers (“guestworkers”). If Governor Jerry Brown signs these four bills, the new laws will ameliorate some of the worst abuses immigrants suffer, including human trafficking, wage theft, and employer retaliation against workers who organize or report illegal acts to authorities. Comprehensive federal immigration reform that protects vulnerable foreign workers from abuse remains a longshot in the near-term, so these are welcome developments for the state with the largest population of immigrants.
An estimated 1.85 million unauthorized immigrants work in California, meaning a tenth of the workforce is particularly vulnerable to exploitation on the basis of immigration status. It is difficult for unauthorized workers to enforce minimum wage and overtime laws because employers use the threat of deportation to prevent labor organizing and to keep workers from complaining. Employers can report the undocumented to Immigration and Customs Enforcement, or require them to update or provide documentation for their “I-9” file, or run their name through E-Verify, the government’s electronic employment verification system. This increases the likelihood they’ll be fired and/or deported.
Three bills awaiting signature could prevent this. AB263 and SB666 would prohibit employers and their agents from using immigration status in retaliation for organizing, demanding their wages be paid, reporting employer violations, cooperating with a government investigation, or testifying against employers who act illegally. Both bills establish a $10,000 civil penalty. AB263 makes retaliation a misdemeanor and entitles victims to reinstatement and back pay, and SB666 permits suspension or revocation of violators’ business and Bar Association licenses. AB524 expands the definition of extortion to include threats related to immigration status, thus prohibiting employers from stealing wages using threats of deportation.
The California Senate estimates that 130,000 guestworkers worked in California in 2011. Most were employed on farms or amusement parks, or in computer and information technology-related industries. At least 14,000 were employed in mostly lower-skilled jobs through the State Department’s J-1 Exchange Visitor Program.
Although guestworkers are “legal” workers, they can be still be exploited because employers control each worker’s visa and immigration status. If a guestworker organizes or complains, she can be fired, which invalidates the visa and renders her instantly deportable. Guestworkers are terrified of losing their status because they sometimes pay thousands of dollars to labor recruiters to secure a temporary job. This leaves guestworkers deep in debt and indentured and with only a short time to recoup their investment. Sometimes they are worse off than unauthorized workers who can search elsewhere for a job without forfeiting their home or life savings.
SB516, which passed the Senate 38-0 and is supported by anti-human trafficking advocates, would help curb many of the worst recruitment abuses by requiring foreign labor recruiters to register with the state and post a bond based on revenue earned. It would prohibit charging fees to workers for recruiting services or threatening or coercing workers. Enforcement actions could be commenced in court by an aggrieved worker or by the state. Although SB516 exempts companies that recruit guestworkers through the J-1 program, and employers are exempt from liability if they use a registered recruiter, it’s a huge improvement over current state or federal law.
American workers employed in similar occupations will suffer if California businesses can prevent wages and working conditions from improving because labor laws don’t apply to two million exploited and underpaid immigrant workers. This fact—combined with the political reality that the House of Representatives may fail to pass any meaningful immigration reform legislation this year—is why Governor Brown should sign them all.