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CAUTION!
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site is no longer actively maintained.
It remains on-line as a historical exhibit about immigration, and as
a record of creative research and service by University
of Tennessee
law students. The issues dealt with here are still fascinating and timely,
but viewers should use caution. Any specific legal information contained on
this site should not be relied upon, because it may have changed in the
intervening years. For
additional information about this site and the decision to leave it on the
web, visit the home page: http://web.utk.edu/~tnlatina/
~Labor and
Employment Issues~
For web links and
contacts on this issue, see our general links & contacts pages.
 AFL-CIO on immigrant rights
Organizing, Handbilling, Demonstrations
Health
Insurance and Pension Benefits
Minimum
Wages and Maximum Hours
Unemployment
Insurance
Work-related Injury and Disease
Job Security during Family Emergencies
Employment Discrimination
Employment-related Taxes
Disability
International Labor Rights
General Reflections on Immigrants’Access to
Employment
NOTE: Labor and employment law is
a large body of state and federal statutory and common law, full of
specific and complex rules that govern the rights and responsibilities of
employers and employees in Tennessee.
In addition to the usual rules about the employment relationship, if a
worker is an immigrant, a number of special rules may apply. This website
cannot realistically cover such a large territory in depth. Accordingly,
the outline below is intended to provide a rough idea of major issues, not
legal advice for a particular case. For that, a lawyer should be consulted.
AFL-CIO on immigrant rights
The following debate took place on the floor of the AFL-CIO convention
in Los Angeles, on the morning
of October 12, 1999.
The speakers were all speaking on resolutions 17 and 34, forwarded to the
convention by the Alameda County Central Labor Council and the California
Labor Federation (supported by numerous other labor councils and unions),
which called for the repeal of employer sanctions, an immigration amnesty program,
an expedited citizenship program, an end to cooperation between the
Immigration and Naturalization Service and other government agencies, an
end to Social Security letters used to fire immigrant workers, and for
redirecting resources from the INS to the enforcement of labor laws and
workplace standards.
The motion from the convention's public policy committee was to refer
the resolution to the incoming executive council. In a press conference
prior to the convention, the AFL-CIO announced that it would hold a series
of hearings around the country, taking evidence about the way in which
immigration law and its enforcement is used to deprive workers of their
rights. Following the hearings, the federation will write a White Paper,
and send it to February's executive council meeting. There is every
expectation that the council will then adopt the recommendations of the
resolution, especially that calling for the repeal of employer sanctions.
It was clear from the comments of the speakers (and there were many more
lined up to speak at the floor mikes), from the waves of applause that
greeted some of their comments, and from the absence of vocal opposition,
that the resolution would have passed there on the floor had it been put to
a vote. Its supporters, however, had already agreed to the process of the
hearings leading to a vote at the February executive council, and felt that
the hearing process would generate even more support among unions leading
to that decision. They therefore didn't oppose the motion to refer the
resolution to the February executive council meeting.
The notes by the following individuals were transcribed by David Bacon,
covering the convention for Pacifica Network News:
Linda Chavez-Thompson--Executive
vice-president, AFL-CIO
Eliseo Medina--Executive vice-president,
Service Employees International Union
Arturo Rodriguez--President, United Farm Workers
of America
Frank Hurt--President, Bakery, Confectionary
and Tobacco Workers International Union
John Wilhelm--President, Hotel Employees and
Restaurant Employees International Union
Joe Hansen--Secretary-Treasurer, United Food and
Commercial Workers Union
Linda Chavez-Thompson
Executive vice-president, AFL-CIO
Immigrants are 10% of all U.S.
workers. Today, as always, immigrants come to this land of opportunity
seeking better lives for themselves and their families. Immigrants enrich
our nation, our communities, our churches, our schools and our workplaces.
I know. I am from a family of immigrants, and so are you. Like you, my
family has been blessed to share in this country's bounty. Like you, we
have worked hard to give back even more than we have received.
We recognize, of course, that the nation must have laws to create
orderly means to receive immigrants and refugees, and to protect the
interests of all workers. But too often our immigration laws and their
enforcement fail both tests and do more harm than good.
Today's laws do not protect any workers, regardless of their immigrant
status, from exploitation and abuse at the hands of unscrupulous employers.
Today's laws encourage discrimination against native-born citizens who may
look or sound foreign or who have last names like Chavez, Martinez
or Sanchez. Today's laws give union busters weapons to intimidate and
coerce workers and obstruct union organizing campaigns. I know. I've been
there. I've seen that.
And today's laws foster antagonism and hostility between workers and
communities that have more that unites them than divides them. It is time,
long past time, to address the nation's failed immigration policies and
demand reforms that reflect and respect the legitimate concerns of all
workers, while ending the exploitation and abuse that's fostered by the
existing legal schemes.
Resolution 17 provides a vehicle for the federation to push for such
reforms. In conjunction with the four community forums that the federation
will hold in November and December, the Executive Council's review and
deliberation will allow every voice to be heard and will ensure prompt and
effective action. I believe this process will lead us to the right results.
You and I know that the labor family has not always spoken with one
voice on immigration policy. We have had our differences and they have
sometimes divided us. But now we must do all we can to put those
differences aside and bridge that divide. For we can no longer allow the
opponents of working families to use the immigration policies to divide and
conquer us. We may have come here on different ships, but we're all in the
same boat now.
Eliseo Medina
Executive vice-president, Service Employees International Union
When I first joined the farmworkers union as a 19-year old farmworker, I
had an opportunity to read a lot of books about the history of the labor
movement. I saw a movie called "The Inheritance." In it I saw
where immigrants - Italians, Jews, Polish workers, Irish - people like me,
who came from another country - began to form a new life by organizing a
union. And I thought that if other immigrants could improve their lives
through a union, so could I, and so could people like me.
Today, brothers and sisters, I am more convince than ever that for
immigrants to build a better future, they need to build a union. But I am
also convinced that as the labor movement is the best hope for immigrants,
that so also are immigrants the best hope of the labor movement to build
the power we need.
Yesterday we celebrated the organizing of new workers, and they joined
us up here in front of the stage. Home care workers. Janitors. Farm
workers. Poultry workers. Asbestos workers. Latinos. Armenians. Ethiopians.
All immigrants. All trying to build a better life.
Brothers and sisters - immigrants are not only fighting in the worksite.
They are also fighting with us in the political arena. We in California
last year defeated Proposition 226, a proposition that would have crippled
the labor movement if it had passed. In that campaign, the Latino community
voted 75% in opposition to Proposition 226.
They voted, union and non-union alike, in a greater proportion than even
union members against Proposition 226, because they believe that the labor
movement is the best hope for working people in this country.
Brothers and sisters, the immigration laws of this country are no longer
protecting us or working people. They are being used against us. They are
being used to break organizing drives. They are being used to break
contract campaigns. When you have been working in a company for eighteen
years, and all of a sudden your papers are no longer sufficient, and the
INS comes in and deports you, brothers and sisters, it not only breaks the
organizing campaign, it breaks families. All of a sudden, a mother or a
father that went to work that morning find themselves on a plane out of
this country. That's wrong. And we need to do something about these immigration
laws that are dividing us, not uniting us.
So I stand here, and I support the referral, but I also support a
process that will allow us to work together, so that we, the labor
movement, can speak with one voice, in the defense of the working people of
this country.
Arturo Rodriguez
President, United Farm Workers of America
I echo the remarks of brother Eliseo Medina and Linda Chavez Thompson on
this issue. This is a very critical issue that faces us in the labor
movement today, brothers and sisters. We, not only in the Farm Workers, but
in every single aspect of work here in the labor movement, are impacted by
the immigration laws of this country. We in the labor movement need to take
united action. We need to build consensus among us. We need to come
together on the issue of immigrants.
We all know our great tradition and history in this labor movement. We
know the successes that have come about, and the best traditions that have
been developed because of all the history before us of developing a strong
labor movement as we have it today.
But now, sisters and brothers, we are faced with another challenge, with
the immigrants that are coming into this country that are part of this
workforce, and that have been part of this workforce now for decades. We
need to take strong action.
There's example after example in organizing campaigns of how we've been
impacted. For example, not too long ago at A&D, a Los
Angeles janitorial services company, a worker's
face from the Hotel and Restaurant workers appeared on a leaflet. The next
day his employer asked him to verify his status here in this country.
Too often we see situations like UNITE faced at RCR Classic Designs, a Los
Angeles furniture manufacturer. When they were
organizing at that particular company, letters were sent to the pro-union
workers, all asking them to verify their status, their legal status, here
in this country, going after and targeting specifically those pro-union
workers.
On and on go the examples. And they not only impact us in our organizing
campaigns. Also they impact us where we have collective bargaining
agreements. At one particular company that we have under agreement right
now, Bear Creek Production Company, the largest maker of rose plants, Jackson
and Perkins rose plants, in this country, almost 15% of our workforce were
sent letters by the INS, asking them to demonstrate their documentation.
Now these are not workers that just came here yesterday. These are
workers that have been here 15, 20, 25 years, have houses, have their
families, are in the educational system, have paid taxes all these years,
are members of those communities. They're asking them to again demonstrate
their status in this country. And they were evicted. They lost their jobs
as a result of this particular program. And we had to go on a major
campaign.
But it wasn't because of the fact they weren't documented. It was
because of the fact that here in this country there's nothing that's been
done with the huge backlog of individuals that have processed and have
filed their papers, their documentation, and nothing has been done to
enroll them and provide them with citizenship as they're seeking.
We as a labor movement, sisters and brothers, need to be considered as a
champion of immigrants and their right to organize. We need to be seen in
that light. We need to be looked upon as those individuals that are really
out there, fighting on their behalf so that we can build a stronger labor
movement, so we can build one that grows and increases in strength so we
can represent the rights of all working families.
Frank Hurt
President, Bakery, Confectionary and Tobacco Workers International Union
National immigration policies and their enforcement are matters of
pressing urgency and concern to this union movement and to all working
families. We have dealt with these questions before, most recently, several
years ago, when I chaired the executive council special committee that
developed the immigration policy statement which was later adopted by the
council.
That undertaking was thoughtful and conscientious. But the issues remain
critical, and many problems persist. Workers, all workers, have rights, and
we must not let flawed immigration policy deny workers their rights. It is
time, then, to revisit the immigration debate.
With the economy more than ever global, and workers more than ever
mobile, and with economic despair and disparities deepening worldwide, more
and more immigrants come to our shores and cross our borders for the
simplest of reasons. They need to work. No less than the native born, they
believe in the American dream - that working hard and playing by the rules
will lead them and their families to economic security and prosperity.
As a nation and movement of immigrants, we embrace the rights of each
new generation of immigrants that share our dream. But we also recognize
the nation's legitimate interest of fixing reasonable and orderly methods
of receiving immigrants and giving sanctuary to refugees. The tension
between these interests has sometimes divided us. But today we stand as one
in acknowledging that existing laws meant to protect immigrant workers,
indeed all workers, do not work and must be fixed.
Existing laws and enforcement policies do not protect immigrant workers
against sweatshop conditions, discrimination and other exploitation, and
unscrupulous employers. They do not protect immigrant workers and their
families from governmental overreaching. They do not protect existing
workers against job loss or lower wages and benefits. And they do not
protect workers right to choose a voice at work.
In short, existing laws and policies do not protect any of us. Instead,
they arm employers with additional weapons, often wielded with governmental
complicity, to further undermine workers rights as individuals, and their
collective rights to join together into unions to bargain for better wages
and working conditions. They pit worker against worker, ally against
friend, driving wedges between us when we should stand united on the same
battleground.
The task before the executive council is complex and difficult, and
finding the right solution may not be easy. But it is a task that we must
embrace with open hearts and minds, moving quickly, eagerly and
thoughtfully to ensure that all who wish to work and wish to join a union
can fully exercise their rights.
John Wilhelm
President, Hotel Employees and Restaurant Employees International Union
It should be said at the outset that this is not primarily an issue for
the service sector unions. There are as we meet today millions of immigrant
workers who are non-union workers in the construction industry. And they
need to be organized if our movement is to regain the power for working
families that we all seek. There are, as we speak, million of immigrant
workers working non-union in the manufacturing sector. And they need to be
organized. There are tens of millions of immigrant workers working
non-union in this country. And they all need to be organized if we are to
regain the power for working families that we seek.
HERE in the 1980s supported employer sanctions, because we believed
employer sanctions were a logical part of a sound immigration policy. But
the facts and the realities are, as we've observed them in our workplaces,
that employer sanctions don't contribute to controlling illegal
immigration. If they did, there wouldn't be tens of millions of immigrant
workers, many of whom are not technically legal, working non-union, in this
country.
And we see in our workplaces that the harsh reality is that employer
sanctions are used as a weapon by employers against workers, as if
employers needed another weapon against workers.
I recognize that there are honest differences of opinion in this house
on some of the details of the immigration question. And if for that reason
it is the will of the majority that this matter should be deferred, I would
nevertheless believe it to be a terrible mistake for this convention, if we
were to leave Los Angeles, a city that is in many ways the capital of
immigrant workers, if we were to leave here with any doubt in the minds of
anyone, inside or outside this hall, what side we're on.
When those who came before us, who built this labor movement as we know
it today in the great depression, in the great strikes in rubber and steel
and hotels and so many other industries, in textile, our forefathers and
foremothers in this movement -- they didn't say "Let me see your
papers" to the workers in those industries. They said, "Which
side are you on?" And immigrant workers today have the right to ask of
us the same question. Which side are we on?
I have no doubt what side we're on. I believe we're on the side, all of
us, of immigrant workers because we know that is the right thing to do.
Because we know this labor movement was built and bequeathed to us by
immigrant workers. And also, because in addition to being the right thing
to do, I believe that we all are on the right side of this issue because
there is no reality to the notion that we talked about yesterday morning,
that we're going to organize the unorganized in sufficient numbers to
rebuild worker power in this country if we're not on the right side.
There's great opportunity here, but sisters and brothers, likewise there's
great danger. All of us in California take great pleasure in the fact that
the Republicans made a great blunder in this state by declaring themselves
to be on the wrong side of the immigrant question. And I believe that the
Republican have earned their deserved fate of not getting the support of
the increasingly large immigrant electorate in this state because they
declared themselves to be on the wrong side. There's great opportunity
here, sisters and brothers, but let's not make the same mistake that we
revel in the Republicans having made. Let us go forth from this hall with
no lack of clarity that we are on the side of immigrant workers. It's the
right thing to do and it's the only way to organize.
Joe Hansen
Secretary-Treasurer, United Food and Commercial Workers Union
The United Food and Commercial Workers represents over 200,000 workers
in meatpacking plants and in poultry plants and in food processing plants
in the United States. Most of these plants, in fact the entire industry,
have had dramatically changed demographics in the last 20 years. It was not
unusual to have meatpacking plants in Nebraska and in Iowa and in
Minnesota, or poultry plants in Delaware or North Carolina or Maryland, to
have a workforce that is made up of a vast majority of immigrant workers.
In many of these cases, in fact in most of these cases, these
immigrants, like immigrants before them in our nation, have been exploited
by unscrupulous and greedy employers. In fact, in the meatpacking industry
in the 1980s, immigrants were used as union-busting tactics and were also
used to lower wages and conditions of workers in that industry.
The UFCW has had extensive, extensive experience in representing
immigrant workers. We've had success in organizing immigrant workers in
packing plants and in poultry plants. And we've also had success in raising
the wages and benefits and making for safer working conditions in these
plants with immigrant workers. We have had success in a number of areas.
but we would have had much more success for all of our workers if we had
had immigration laws that were humane and just.
The current immigration laws and current immigration policies just do
not work. Now I agree with sister Linda Chavez-Thompson that this is a very
complex problem, and I also agree that there is no easy solution. But I
believe and I firmly believe, and I'm on the same side as John Wilhelm,
that reform is needed and we're on the side of the immigrants.
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Organizing, Bargaining with Employers, Handbilling,
Demonstrations
The National Labor Relations Act governs most private-sector workers and
guarantees the right of employees to organize into a labor union and to
bargain collectively with their employer. (Note, however, that agricultural
workers are explicitly excepted from the NLRA.). The rights of freedom of speech
and assembly in the U.S. and Tennessee constitutions offer some protection
to public-sector workers (government employees). See additional information
about <UNIONS> on this website.
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Minimum Wages and Maximum Hours
The U.S. Fair Labor Standards Act governs collection of unpaid wages,
paid breaks, and being engaged to wait for work. It mandates a federal
minimum wage. That wage, as of April 1999, is $5.15 per hour. The Act does
not set maximum hours, but it requires that "overtime" work be
paid at a higher rate. The Fair Labor Standards Act provides for the
recovery of reasonable attorney’s fees for a prevailing party.
Some states and municipal governments have enacted a higher minimum wage
for all employment within the jurisdiction or for government employees
and/or government contractors. At the time we are creating this web page
there is a campaign underway to press the City of Knoxville to adopt a
"living wage ordinance," on the theory that the city and its
contractors should pay enough to put a wage earner with a family of four
above the poverty line.
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Work-related Injury and Disease
The Tennessee workers compensation act requires many employers to pay
health-care and lost-wage benefits to employees who suffer work-related
injury or disease. Covered employers must pay medical expenses and replace
a portion of wages that are lost while an employee is temporarily disabled
from such an injury or disease, and must also provide modest compensation
if the employee suffers permanent effects. The employer can insist that the
worker go to a doctor approved by the employer in order to qualify for
medical benefits. This program is known as "workers
compensation." For additional information, click here. < >
[Click to RLST brochure in English and Spanish.
Please note: unless the employer receives clear notice of the
injury or disease – often within a very short time, such as thirty
days – the employee may not be able to collect compensation. An
injured employee, or anyone advising such an employee, should try to make
sure that the employer has received such notice, and that the notice can be
documented.
Many attorneys in Tennessee handle workers compensation claims on a
regular basis, contracting with their clients to receive a percentage of
the recovery as their fee. (This is known as a "contingency fee
arrangement.")
There are also federal and state occupational safety and health laws
whose purpose is to prevent occupational injury and disease. They regulate
information that must be provided to workers and to the community about
hazards at workplaces, and set legal standards for safety and health on the
job. Workers concerned about hazardous conditions have a right to
information and can notify the authorities that an inspection is needed.
Employers are forbidden to retaliate against an employee who takes such
action. The federal act, which covers private-sector workers, is the Occupational
Safety and Health Act.
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Employment Discrimination
Federal and state law prohibits discrimination in employment based upon
race, creed, color, national origin, religion, gender, age and disability.
These rules include many different kinds of employer action, such as
hiring, promotion, firing, and conditions of work.. Sexual or racial
harassment on the job -- including pressure on an employee to grant sexual
favors, or other conditions that create a racially, ethnically or sexually
hostile working environment -- can constitute employment discrimination.
Some relevant laws include Title VII of the federal Civil Rights Act of
1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, and the Tennessee Human Relations Act.
In addition to the traditional anti-discrimination rules mentioned
above, in 1986 when Congress first decided to impose legal sanctions on
employers who hired undocumented workers, it also passed special provisions
making it illegal for an employer to engage in "immigration-related
employment discrimination." (See the Immigration Reform and Control
Act, or IRCA). This law provides narrow but potentially important rights
for both immigrant and native-born workers. By definition, employers can
discriminate against workers who are "undocumented," that is,
workers who are not legally authorized to work in the U.S., in fact, they
are required to do so. However, an employer cannot discriminate
against applicants or employees simply because they were born in another
country or are not U.S. citizens. Further, although an employer is required
to demand proof of work authorization, the employer cannot subject an
employee to "document abuse." (This means the employer must
accept the full range of documents specified as acceptable by INS. Please
note, however, that the list of acceptable documents is currently narrower
than it was at the time IRCA passed.)
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Disability
"Disability" can be important in several employment contexts
(such as employment discrimination, workers compensation, or social
security), and its meaning can change in those different contexts. For
instance, the federal Americans with Disabilities Act prohibits
discrimination against disabled people, and sometimes requires that an
employer make "reasonable accommodations" to enable a qualified
disabled person to perform the needed job. In the context of workers
compensation, an injured worker may end up suffering a "permanent
disability" that entitles her to some compensation for that lasting
injury, but her permanent injury may only be partial so she is not
"disabled" from performing her particular job. A person with a
disabling physical or mental problem may be entitled to public benefits
known as "Social Security disability" under federal law, but the
disability must be severe enough that the person cannot reasonably obtain
employment anywhere.
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Health Insurance and Pension Benefits
Health Insurance: Although employers in the United States are not
required to provide health insurance for their employees, many do so
voluntarily or as part of a collective bargaining agreement. A federal law
does provide that in many cases an employee who has lost his jobs may
continue participating in his prior work-linked health insurance plan for
some period of time, but only if the employee can afford to pay the
premiums out of his own pocket, often not a possibility. For further
information on health care, including services for those who are not
covered by a work-related policy, see <access to health care
information> elsewhere on this page.
Pensions: Employers in the United States are not required to provide
pensions for their employees, but as with health insurance, many employers
do so voluntarily or as part of a collective bargaining agreement. The
federal Employee Retirement Income Security Act (ERISA) governs this
complex area, and provides elaborate rules for how employer pension plans
are to be structured and administered. In addition, whether or not there is
an employer-sponsored pension plan at a particular worksite, all employees
are expected to pay into the federal Social Security system, which provides
modest retirement benefits to those who have participated at the required
level.
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Unemployment Insurance
An employee who loses her job though guilty of no misconduct may be
entitled to unemployment compensation. Covered employers are obligated to
provide these benefits -- which provide for partial replacement of lost
wages for a limited number of weeks after the employee’s discharge --
for the purpose of providing some stability to the employee during a
transition to another job. Workers file claims at the unemployment office.
To continue receiving benefits the worker must normally be ready and
willing to take a job doing "available, suitable work," and must
search for work weekly in order to collect benefits. A person who is
undocumented is legally ineligible for unemployment insurance based
on the idea that he is not legally able to work.
Covered workers who can show that their loss of employment was triggered
by certain effects of international trade and investment may be able to
claim extended benefits under the federal Trade Adjustment Assistance Act
or under a similar act tied to the North American Free Trade Agreement that
applies in cases where job loss can be traced to effects of trade or investment
between the U.S. and Canada or Mexico.
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Job Security during Family Emergencies
The federal Family and Medical Leave Act requires some employers to
allow unpaid leave for up to twelve weeks per year for workers who need to
take time off to help family members with serious health problems or to
take care of a newly-born or newly-adopted child.
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Employment-Related Taxes
Wage earners must pay federal income tax pursuant to the federal
Internal Revenue Code, and employers are required to "withhold"
estimated taxes from the paychecks of their employees. They must also
report this withholding on their workers’ periodic pay stubs, with an
annual statement (the "W-2") given to each worker in the spring.
Self-employed individuals must pay their own social security and income
taxes. See additional information about <taxes> elsewhere on
this website.
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International Labor Rights
Several aspects of international law relate to labor and employment
rights within the United States. Some pertain to all workers, while others
focus particularly on immigrants, whose crossing of national boundaries in
search of work makes them a logical focus of international concern.
International labor rights generally: International labor rights is an
emergent field, and certainly does not constitute the bread and butter of
our local court systems or local labor and employment law caseloads.
However, they are a distinct and growing part of the picture, and given the
realities of globalization, they may have increased significance in the
future. Several international human rights instruments contain
articulations of worker rights. (For instance, the Universal Declaration of
Human Rights, the International Covenant on Political and Civil Rights, and
the International Covenant on Economic Social and Cultural Rights all
contain labor rights provisions. The North America Free Trade Agreement
(NAFTA) was accompanied by a "labor side agreement" that contains
for weakly enforced but innovative provisions whereby alleged labor rights
violations by in any one of the three NAFTA countries can be identified by
people in one of the others, and then aired and examined through a process
of hearings and consultations. A number of <groups that focus on the
defense and extension of international labor rights> are listed
elsewhere on this web page. In addition, many <U.S. labor unions>
listed are actively working to defend and use basic labor rights.
Immigrant workers: The <International Labor Organization>
has adopted several conventions pertaining specifically to the rights of
migrant workers in their destination states. Increases in the patterned
flows of immigrant workers from the poorer countries of the world’s
South to the wealthier countries of the world’s North, together with
the recent economic volatility in many regions where such flows have become
pronounced in recent decades, can be expected to increase attention to the
plight of these world travelers.
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General Reflections on Immigrants’ Access to
Employment
U.S. Immigration Policy and Employment -- Much of U.S. immigration law
centers on employment questions. Jobs within U.S. territorial boundaries
are seen as "American" jobs, and one of the most important
announced goals of U.S. immigration policy is to limit the access of
foreign-born workers to them. On the other hand, the U.S. economy has
always depended upon the labor of non-citizens, sometimes to perform
back-breaking labor, and sometimes to function in positions of high skill
and professional training.
Accordingly, immigration rules have always functioned to exclude and
expel, but also to recruit and admit foreign laborers, and programs and
policies have varied dramatically with changing labor market conditions. In
addition, the U.S. job-protection policy exists alongside other policies
that have sometimes suggested or required accommodation. (Such competing
and conflicting policies have included at various times: supporting U.S.
industrial and agricultural interests by arranging for legal access to
productive, low-wage laborers, sometimes admitted as permanent settlers and
sometimes as foreign guest workers; preserving "whiteness" as the
dominant American ethnicity; promoting family reunification for U.S.
citizens and U.S. permanent residents by allowing them to seek admission
for certain foreign-born family members; granting political asylum to
refugees fleeing foreign persecution -- especially if the refugees were
fleeing countries with whom the current national government was in
conflict; enabling the immigration of exceptionally talented persons or
wealthy investors; promoting increased immigration from predominantly
European countries to "correct" the relatively low immigration
flows from those nations since the old race-linked national-origin quotas
were dropped from U.S. immigration law in 1965.)
Work Authorization for Immigrants: An immigrant who achieves
"permanent residency status" (known informally as having a
"green card") is authorized to work at whatever job he or she can
find, on the same terms as a citizen. Other immigrants may be awarded a
temporary or provisional work authorization, perhaps in response to a
showing of hardship for a student, or pending some other resolution of a
claim such as a petition for asylum. In addition, the U.S. currently runs a
number of foreign guest worker programs, administered by the Department of
Labor in collaboration with state-level departments of labor, whereby
foreign workers are admitted to the U.S. on a temporary basis to perform
specific jobs that have gone through a certification process that is
supposed to assure that the jobs cannot be filled by U.S. workers despite
recruitment and the offer of prevailing wages. The agricultural lobby is
currently pressing for this program to be substantially enlarged and
deregulated. Attorney Bill Francisco at Legal Services of Upper East
Tennessee is a knowledgeable source on Tennessee’s experiences with
"H-2-A," the current guestworker provision most relevant for
low-wage Latinos.
Undocumented status: Many immigrants in the U.S. are working without
proper authorization. These are undocumented workers, or so-called
"illegal aliens." It is a violation of U.S. immigration law for
such a person to work for an employer, and under the Immigration Reform and
Control Act it is a sanctionable offense for an employer to hire such a
person. (Note that an undocumented immigrant who starts his or her own
small business has not violated this particular law. Similarly, a person
who contracted for such the services of such a businessperson, if the
relationship is authentically independent, would not be an
"employer" and therefore not covered by the act.)
Continued flows despite lack of authorization: Despite the illegality of
such employment and the precarious situation it creates for undocumented
workers, strong immigration flows of low-wage workers from the South
continue. Theories about the explanation for these flows are various. They
include the harsh economic conditions faced by low-skilled workers in
Mexico and Central America today, the eagerness of many U.S. employers to
hire Latino/a workers in low-wage positions, and the "chains"
created both by ever-increasing transnational business activity and by the
transnational kinship networks built and maintained by so many immigrant
families. Many commentators have pointed out the troubling domestic
consequences of this new "second class" American work force.
Growing up within our borders, in many ways the creature of our own
economic and foreign policy choices, is a new sub-stratum of the economy
working under a different set of rules and standards. If one whole tier of
the workforce lacks knowledge of labor and employment law and is in any
case afraid to demand its rights, then the workers in that tier are
vulnerable to unjust treatment and exploitation. Their presence also means
that conditions are likely to erode for workers in other tiers as well.
Even employers that would rather not take advantage of such a system face
competition from those that are only too ready to do so.
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