IMMIGRATION ENFORCEMENT IN THE WORKPLACE: INTERVIEW WITH STEPHEN LEE

By Danielle Spears
Staff Writer

On Oct. 26, UC Irvine law professor Stephen Lee spoke about immigration reform in the workplace to a conference room of about 30 attendees at UCSD. In the United States, immigration issues have been tackled mainly as a homeland security concern, with enforcement concentrated at our borders. In his brief talk on Tuesday, Lee explored the possibility of tackling illegal immigration within the workplace as a domestic labor issue. Lee explained how the Obama’s administration may finally be placing workplace reform within the “labor box” instead of the more familiar “security box.”

Today, the U.S. Immigration and Customs Enforcement agency (ICE), a division of the U.S. Department of Homeland Security, is responsible for enforcing immigration law. Lee thinks that ICE’s focus on deportation at U.S. borders creates many fundamental problems. The ICE often deports illegal residents through avenues such as section 287(g) of the controversial Immigration and Nationality Act of 1995, which allows state and local authorities to investigate and detain any persons that they encounter in their daily activities, inviting widespread criticism that the law enables racial profiling against Mexicans.

Although he is still on the fence about the idea, Lee suggests that the Department of Labor take on an active enforcement role in the government’s battle against illegal immigration. Lee argues that the DOL could help unauthorized workers become more aware of their rights through effective communication. For instance, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race or national origin, and the Occupational Safety and Health Act requires that employees have a safe work environment. The Fair Labor Standards Act, which is supposed to guarantee a minimum wage to workers, is widely abused by U.S. companies who employ illegal workers. According to Lee, while the DOL could act as a invaluable resource for immigrants who experience mistreatment, it must first regain worker’s trust that has been violated by homeland security. Lee says that in order for the DOL to take a more active role in enforcing law in the workplace, the effort needs to be employee-driven. However, this is unlikely in an environment where most unauthorized employees are too fearful of deportation to approach a government agency.

To address this problem, Lee suggests what he calls “principles of immunity,” which could encourage immigrants to come forward and report employee mistreatment. The AU Visa (I-360), for example, gives victims of crimes and their families eligibility to work in the US for up to four years. He also mentioned a growing tendency among judges to grant protection for immigrant participants in court; for example, many judges do not ask participants about their citizenship status throughout the duration of the trial. If the government could better education workers about their rights and create a greater sense of immunity for immigrant workers, they would feel more encouraged to come forward about abuses, giving agencies like the DOL a more secure position from with which to investigate employers.

PROSPECT: Immigration policy in the U.S. is a difficult onion to peel – it has many layers. You made the point that immigration policies have been largely generalized as security issues, leaving much for future lawmakers to explore. Do you think that this kind of exploration being encouraged by the government? If so, in what ways? If not, who IS encouraging it?

SL: For the first time in a long time our president understands regulating labor abuses. Bush and Clinton both engaged in regulation via mass deportations, sending a message that, “If you come to this country you will be sent home.” Under Obama, at least immigrants can enforce labor rights in the workplace and prevent employers from taking advantage. With this presidency I think we will see an effort to disincentivize employers from hiring illegal residents in the first place.

PROSPECT: You described your experience as an “information broker” to your parents growing up – how does this experience impact your perspective as a legal professional? Do you find it fitting that you now observe these issues as a professional?

SL: I think it’s not only fitting but rather by design that living in the margins of society gave me a different perspective. It designs my approach to scholarship. I’m interested not only in the messages sent out by government, but in understanding how those messages are received by immigrants, if they even are.

PROSPECT: Do you see public education changing further to facilitate the role of children as information brokers to immigrant parents?

SL: I don’t know a whole lot about public education, but I will say that I think it’s an area that tends to draw a lot of sympathy from the public. This evokes the discussion around the Dream Act, which will provide a mass adjustment to immigrants and rewards the youth. The youth are American and they’ve been here all along, but still provide an important link to their families.

PROSPECT: In a New York Times article from 2006, Eduardo Porter suggests that the US government appeared to have “declared all-out war against illegal immigration,” in reference to border policing and PR campaigns under the Bush administration for Homeland Security. How do you see policy under Obama’s administration differently?

SL: I don’t see policy so much as being different. I do see a reprioritization of immigrants who commit crimes. Under Bush, it was a priority. Under Obama, it’s actually an increased priority – there’s actually an increase in overall deportations. But this depends on the area of enforcement. The workplace is different.

PROSPECT: Do you believe that businesses that have been enjoying the lack of regulation in the workplace will continue to hold a powerful voice in politics under the Obama administration?

SL: On some level, they have been able to maintain power, mainly because of economic meltdown. Maybe otherwise Obama would be more strident against it… but some is tempered because [the economy is] already suffering.

PROSPECT: Porter also mentions a social security screening device that can be used by employers to use during interviews. What other kinds of employer regulation could we begin to foresee happening in the workplace?

SL: I think he might be referring to eVerify, which is a very problematic system. The database is a social security one that is different than the one concerning immigrants, and there are a number of inconsistencies bringing up “non-match” results. Alternatively, Congress has pushed for a national identity card, which would erase questions of citizenship. However, it has been pushed back because of issues of privacy.

PROSPECT: Your career is unique in that you represent both the legal and academic communities. You make an argument that immigration reform should focus on the workplace and that it should be a responsibility of the Department of Labor. Do you see any political or academic movements that are encouraging your argument? From your fields of research, do you see more attention being paid to immigration studies in the workplace?

SL: There is an increasing awareness about workers rights as pertaining to immigrants. In the legal community and the academic community there are folks at Yale and Loyola, among other places, who pay attention. In the legal community, worker’s rights often include immigrants’ rights. The significant aspect of this talk at UCSD was that it forced me to think about the DOL, and I realized that I’m not entirely comfortable with it – I’m just exploring it. It could be a structure of enforcement, but there needs to be a greater awareness of the DOL and the DOL needs to be given more resources. I think that academics are concerned that they stand at odds with the mainstream public.

PROSPECT: If the DOL were to take over more responsibilities in employer regulation, would ICE be free to focus on homeland security in a more effective manner?

SL: It would simply allow ICE to focus on what it’s good at – going after non-citizens, investigating potential criminal activity, investigating employers who are parading as traffickers. It’s not really clear who is better suited for this job.

PROSPECT: Ideally, what kinds of trustworthy information do you think needs to be offered to people who are unauthorized residents? If the DOL launched a progressive campaign for immigrants, what could it offer in local communities to lessen the demand on neighborhood organizations and cultural centers?

SL: I think it could provide basic things like working with stake-holder organizations and cultural centers, letting people be comfortable that reporting workplace violations will not lead to deportation. I was talking to a lawyer who works for a migrant farmworkers organization and he was telling me how he has to wear a bright yellow shirt when he’s around them or just anything that will make him not look like a government official. It’s a huge challenge.

PROSPECT: Do you have any last thoughts?

SL: I just wanted to add that the UCSD talk was really useful for me because it allowed me to think about how much of a role the DOL should play and that I do want it expanded. But I don’t think the DOL should punish employers for immigration violations – so I think I’m still on the fence about what kind of role it should play. Certainly we should increase the number of U-Visas for the DOL and also increase DOL funding for informational and educational campaigns toward migrant workers.

Image courtesy of http://www.law.uci.edu.

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