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TESTIMONY OF AFL-CIO PRESIDENT JOHN J. SWEENEY

Before the United States Senate

Committee on the Judiciary

September 7, 2001

On behalf of the AFL-CIO, thank you for the opportunity to be here today to discuss one of the most important issues we face as a nation and a people, our policies with respect to immigrants and immigration. The scores of unions that make up the AFL-CIO represent over 13 million working men and women of every race, ethnicity, and immigration status. Knitting together this rich tapestry of color, language and country of origin are shared values and hopes: All workers want to provide better lives for their families. All of us want the opportunity to hold good jobs in safe environments, which pay a living wage and provide reliable health care and retirement benefits and a chance to better ourselves through education and training. And as much as anything else, workers here and around the world want to be treated with basic dignity and respect, free from persecution and harassment based on who we are or where we come from. These fundamental aspirations of the human spirit do not distinguish between workers based on their immigration status. Nor, we believe, should we.

The United States is a nation of immigrants. Now as in the past, immigrants enrich our lives, contributing energy, talent and commitment to making our economy more vibrant; our workplaces more productive; and our nation, better and stronger. We will be better still, if we move forward with courage, compassion and conviction to shape a new immigration policy that protects the rights and promotes the interests of all those who live and work in the United States, contributing to their families, their communities, and the nation as a whole.


The Special Relationship Between Unions and Immigrants: American workers and their unions are indebted to earlier generations of immigrants who, in their determination to fight exploitation and abuse, founded the union movement and in so doing, improved working conditions and living standards for all working families. Today, growing numbers of immigrant workers are once again winning a voice at work by joining together into unions. Last year, 10 percent of all union members were foreign born, roughly mirroring immigrants= share of the population overall.

Many immigrants work in low wage occupations for which the Bureau of Labor Statistics projects very substantial job growth over the next few years. It is no surprise, then, that AFL-CIO unions which represent workers in these industries -- the Hotel Employees and Restaurant Employees Union, the Service Employees International Union, the Laborers International Union of North America, and the United Food and Commercial Workers -- are also among those unions whose ranks are growing most.

Those of us in the union movement are proud and honored to count these immigrant workers in our ranks. We know that for many immigrants, a union card is the first and best line of defense against exploitation. In the AFL-CIO=s Labor Day survey on Workers= Rights in America, most workers of color -- 86% of Latinos, 85% of African-Americans, and 83% of Asian workers B said recent immigrants are more likely than other workers to be treated unfairly by employers. And immigrant workers (especially Latinos) were more likely than workers overall to say workers need greater protections of their rights on the job. We know that the workplace is stronger, fairer and safer not only for immigrants and others most vulnerable to abuse, but for all workers when the rights of every worker are equally protected and enforced.

Union membership also often offers immigrant workers, especially those at the bottom of the economic ladder, the greatest chance to share in the American dream. In general, workers represented by unions earn higher wages and are far more likely to have employer-provided health insurance than non-union workers in similar jobs. In low wage occupations where many immigrants work – as laborers and agricultural employees, for example -- workers represented by unions earn wages 56% to 59% greater than their nonunion counterparts. Ninety percent of all union members have health insurance, compared with 76% of nonunion workers. Job-based access to health insurance is particularly important to immigrants, who are more likely than other groups of workers to be uninsured.

We recognize and acknowledge that occasionally in the past, there has been resistance within our own ranks to new groups in society and in the workplace. Early in the history of the labor movement, U.S.-born workers resisted Irish workers, whom they feared would take their jobs at lower wages. African American and women workers faced similar resistance and fears. In each instance, however, understanding and inclusion of these workers in the union movement energized us and made us stronger. We believe the time has come for our movement and our nation to accord more recent immigrant workers that same understanding, inclusion and opportunity to become full participants in their workplaces and communities.

Principles of Immigration Reform: More than a year ago, in February 2000, and then again just last month, the AFL-CIO Executive Council firmly and squarely placed the union movement on the side of immigrant workers. In statements adopted without dissent, the Council set out our view that immigrants have played and continue to play an extremely important role in the workplace and society, and that they are entitled to full and fair workplace protections. We believe the principles articulated in those Council statements should inform national immigration policy. Specifically,


Undocumented workers and their families should receive permanent legal status through a new legalization program;
Employer sanctions and the I-9 system should be replaced with a system that targets and criminalizes business behavior that exploits workers for commercial gain;
Immigrant workers should enjoy full workplace protections, including the rights to organize into unions and to seek vindication of their rights free of employer intimidation; and
Guestworker programs should be reformed but not expanded.

Legalization: The labor movement is increasingly concerned about the welfare of our undocumented brothers and sisters, as we are for all immigrant workers. As I have discussed, the relationship between unions and their immigrant members is mutual: unions make a tremendous positive impact on the lives of immigrant workers and their families, and immigrant workers have long been a vital part of the union movement. Immigrant workers have courageously stood with U.S. workers, leading organizing drives and assuming positions of leadership on both the local and national levels. The AFL-CIO supports efforts to legalize undocumented workers who contribute to their workplaces and community. In fact, a number of our international unions assisted many undocumented workers who adjusted their status under the last broad legalization program, the Immigration Reform Act of 1986 (IRCA).

It is unacceptable that upwards of 8 million people live and work in our country each day without the full protection of the law. Undocumented workers and their families are constantly at risk of being preyed upon by criminals, dishonest landlords, or unscrupulous employers, by those who believe they can get away with breaking the law simply because their victims are immigrants. But, undocumented people are not the sole victims when these laws are broken: All of us lose a bit of our own legal protections when entire categories of people are denied theirs. This is especially true in the workplace, where employers may sometimes seek to polarize workers based on race, ethnicity or national origin. In the face of such divide and conquer strategies, labor and employment laws are broken with impunity, wages and working conditions stagnate or fall, and worker progress overall is impeded.


As a matter of fundamental justice, undocumented immigrant workers who have worked hard, paid taxes and contributed to their workplaces and communities should be allowed to adjust their status to legal, permanent resident. Under current law, only those undocumented individuals who can show they were U.S. residents since 1972, almost 30 years ago, may adjust their status. Even as we were putting the finishing touches on this testimony, the Senate still had not approved S. 778, extending section 245(i) to allow some undocumented people to adjust their status, thereby reducing the size of the undocumented population. Our current immigration policy ignores the fact that many undocumented workers contribute to the national economy, have children who are U.S. citizens, and are long-term, law-abiding members of their communities.

A broad legalization program must also allow undocumented people from all countries to adjust their status. The large number of undocumented Mexican workers is a consequence of the 2000-mile border and 300 year history our nations share. We recognize and cherish the bond and special relationship between our countries. And we value and respect Mexican migrants; they are hardworking and deserving. But so, too, are undocumented workers from Haiti, Guatemala, Poland, Canada and elsewhere. They also have stories to tell of their hopes and dreams for a future in the United States, and they also work hard and contribute to their communities each and every day. Limiting a legalization program to one nationality will only further divide us as a people, and leave millions of workers and their families without the legal protections they deserve.

Repeal and Replacement of Employer Sanctions and the I-9 Verification System: The last legalization law enacted, IRCA in 1986, included provisions making it illegal for an employer to hire a worker without work authorization, imposing employer sanctions for violations of that law. These provisions have not worked and should be repealed. Even though the object of employer sanctions was to punish employers who knowingly hire undocumented workers, and not the workers themselves, in reality employers have manipulated the program to violate federal and state labor laws and to discriminate against workers. The current situation not only harms all workers, but also those employers who face unfair competition from others who skimp on labor costs by hiring and then exploiting undocumented workers.

I think no one will contest that employer sanctions have failed. They have not deterred the flow of undocumented workers into the United States, and almost no employer ever experiences a penalty or sanction. In 1999, the General Accounting Office reported that only 17% of lead-driven cases resulted in any sanction or penalty against employers who had violated the law, and that INS collected only 50% of the fines that were levied. During the same period reviewed by the GAO, only 2% of all investigations resulted in a criminal penalty.


Complementing the employer sanctions program is the I-9 form, which verifies an individual’s authorization to work. Employers are required to keep these forms on file for inspection by the Immigration and Naturalization Service (INS). In addition to the paperwork burden it imposes on employers, the I-9 system does not protect workers or prevent the hiring of the undocumented. Workers sometimes falsify records in order to comply with the verification requirements. And, many employers are cavalier or worse in their own compliance, sometimes encouraging or condoning falsification, only to “discover” it later, when the workers begin to push for higher wages and better working conditions. Like the system of employer sanctions, the I-9 verification system has not worked and should be scrapped.

Finally, shortly after IRCA=s enactment, it became clear that numerous workers, mainly Asian and Latino, faced discrimination by employers who assumed the workers lacked legitimate work authorization because they “appeared” foreign or spoke with accents. In effect, a system designed to penalize one form of unlawful behavior promoted another.

Although employer sanctions did not create the problems of exploitation and discrimination, they have contributed significantly to the inability of immigrant workers to enjoy and enforce the most basic of labor and workplace rights. Having failed to fulfill their central purposes and, indeed, having set back the progress of workers generally, employer sanctions must be repealed. The current system of employer sanctions and I-9 verification should be replaced with a new scheme that punishes those employers who deliberately break immigration and labor laws for economic gain. We should increase criminal penalties for employers who knowingly recruit undocumented workers and participate in document fraud for business advantage. Moreover, to help ensure the new scheme works and to avoid the manipulation that characterizes the present system, it is essential that immigrant workers, who risk unfair deportation when they stand up for their rights, receive protections when they file well-ground complaints against their employers.


Full workplace rights: In theory, all workers, regardless of immigration status, enjoy most of the basic rights and protections under the nation’s labor and employment laws. In reality, though, undocumented workers typically fall through and outside this safety net – a result that all too often occurs not by accident, but by design. The constant threat of deportation serves as a velvet hammer employers can wield not only to deny basic rights, such as the right to earn the minimum wage, but also to deter undocumented workers from filing complaints. And since most labor standards investigations are complaint-driven, employers deny rights and protections for undocumented workers with virtual impunity.

In many instances, employers call the INS to report undocumented workers only after they get wind of organizing campaigns or labor standards complaints. Upon learning of organizing efforts or that immigrant workers have filed wage and hour, OSHA, or EEOC charges, employers who have shown no interest in complying with any other labor law suddenly become converted to the sanctity of the ban on hiring workers without work authorization. In a sense, employers determine immigration enforcement policy by alerting the INS whenever workers seek to exercise their employment and labor rights.

Union organizers have faced this tactic when they try to organize workplaces that are comprised predominantly of immigrant workers. It takes a lot of courage for workers to come forward and openly fight for a voice at work through a union. The Human Rights Watch stated in its report Unfair Advantage: Workers= Freedom of Association in the United States under International Human Rights Standards, that many U.S. workers “who try to form and join trade unions to bargain with their employer are spied on, harassed, pressured, threatened, suspended, fired, deported or otherwise victimized in reprisal for their exercise of the right to freedom of association.@ The threat to immigrant workers is even greater: they risk not only job loss, but also possible deportation if they exercise their right to form a union.

In fact, using the threat of INS enforcement to chill worker activity has been a disturbingly prevalent business practice since the implementation of employer sanctions. I would like to give you a couple of the many examples of employers who tried to use the immigration laws to deny worker rights:

In 1997, the UFCW began an organizing campaign at the Smithfield Packing Company in North Carolina. Racial and ethnic separation characterized assignments at Smithfield Packing: white workers held mechanical or supervisory jobs, Native Americans worked in the warehouse, and African Americans and Mexican immigrants were consigned to the “dirty” and dangerous jobs of slaughtering and butchering animals. When UFCW first began its organizing drive, the company fired African American union supporters, and replaced them with Mexican immigrant workers it believed would not vote for union representation. Just before the vote, Smithfield segregated the workers into different rooms by race, then singled out the Latino workers for questioning regarding their immigration status, threatening to call the INS and have them deported. The morning of the union vote, county deputy sheriffs in riot gear lined the plant gates. Not surprisingly, the union lost the vote, but earlier this year, the NLRB set aside the results and ordered a new election. The Board also found that the company illegally fired 11 workers because of their union activities.

Two weeks ago, the EEOC sued DeCoster Farms, an egg processing plant located near Clarion, Iowa. The EEOC charged that Latina workers were repeatedly raped by their supervisors and threatened with firings, deportation, or even murder if they reported the crimes. The EEOC is also investigating charges that the women were paid less than male workers and were denied access to water or breaks as required by law. The supervisors are all male and bilingual. One of the supervisors named by the EEOC as a perpetrator in the rapes was also arrested last week by the INS and charged with harboring unauthorized workers during an immigration enforcement raid that occurred in April. The workers, who speak little or no English, live in rural Iowa where they are isolated geographically and culturally. Some of them have apparently quit their jobs and are currently living in a domestic violence shelter.


Instead of punishing workers, immigration and labor standards policies should specifically penalize employers who break the law and protect workers who uphold the sanctity of our legal system by pursuing their labor and employment rights. We need to ensure that all workers, regardless of their immigration status, are made aware of their rights and of the means to vindicate them. And immigrant workers should have specific protections against employers who try to use the workers’ immigration status to block their efforts to form a union or to otherwise exercise basic workplace rights. Workers should be protected against deportation when they file a labor standards complaint unless the INS can prove that the deportation proceedings are in no way related to the workplace situation, and that the complaint was not filed in bad faith to avoid deportation. Agencies such as the Department of Labor should be required to keep confidential any information they learn about a worker’s immigration status during an investigation or proceeding enforcing labor rights. The INS should be prohibited from proceeding with workplace investigations during a labor dispute. Finally, in order to better target investigations and enforcement, the Departments of Labor and Justice should be required to conduct a study of industries that employ undocumented workers, and the exploitation of undocumented workers by their employers.

Of course, continued inadequate funding for labor standards enforcement will hamper the measures I have outlined above. Funding for labor protection activities has not kept pace with labor force growth during the 1990's. We must reverse that trend and fund these programs adequately, if we are to ensure full workplace rights and protections for all.


Reforming guestworker programs: Some policymakers have advocated a new guestworker program as the answer to the problems associated with our current failed immigration policies. We do not agree. Before there is any serious consideration given to a new guestworker program, immigrants who have been living in this country, holding jobs, paying taxes and contributing to their communities must be given access to permanent legal status.

Beyond that, we are deeply troubled by the guestworker proposals some are advocating, which would lift restrictions on recruiting and hiring low wage, low skilled foreign workers, while conferring only limited protections on these workers and prohibiting them from seeking permanent residency. We recognize that some workers want to return to their native countries and should be able to do so, but any new temporary worker program must include a path to permanent legalization.

A new guestworker program built on the failed policies and models of the past cannot be the centerpiece of our national immigration policy. Analyses by DOL, GAO and others have found that despite employers’ claims to the contrary, guestworkers earn less than their U.S. counterparts. Years of low wages facilitated by the bracero and H-2A programs and easy access to undocumented workers have left U.S. agricultural workers with wages that actually fell during the last economic expansion, a time when virtually all other low wage, low skill workers saw their incomes rise. An INS report to Congress verified that even highly skilled H-1B visa holders in the IT industry earned less than U.S. workers in the same occupations. Guestworkers regularly face many of the problems associated with contingent employment: lower pay, no benefits and intentional misclassification of employment status.

President Bush has suggested that guest worker programs merely match willing workers to employers who are willing to hire them. The President’s statements, however benign sounding, do nothing to address the serious failings of guestworker programs, or the need to test the U.S. labor market first, to assure that there are no domestic workers interested in the positions. Nor do the President’s statements recognize that often guestworkers are only willing to take jobs at below the going rate because they are desperate to come to or stay in the United States.

Guestworkers are tied to an employer or industry or occupation in a way that other workers are not. That alone makes them extremely vulnerable. While guestworkers are covered by most labor and employment laws, the nature of their tie to their employer makes these protections more fiction than reality for most. Hence, any guestworker program must include and protect all the workplace rights that U.S. workers enjoy. In addition, a new guestworker program based entirely on a worker’s relationship to his or her employer, resulting in a system of virtual bondage for many, is unacceptable.

Additional Concerns: We recognize that the issues we have discussed touch on just a few aspects of national immigration policy. Our current legal immigration system for family members, for example, is in shamefully bad shape. Whether addressing family reunification backlogs or processing applications for those seeking to adjust their status, the INS needs adequate funding specifically dedicated to benefits and services. The promise of legalization is only real when the agency administering the program has properly trained staff, reasonable regulations that are consistent with the letter and spirit of the law, and the funding necessary to process applications in a fair and efficient manner.

Conclusion


Unions are playing an important role in bridging the gap between immigrant and non-immigrant workers. We know that the fortunes and futures of all workers in the United States are linked: If undocumented workers have no practical choice but to accept substandard pay and working conditions, their U.S. counterparts will eventually be forced to accept such conditions as well. There is no protection for any worker when some workers have freedom to exercise their labor and employment rights and others do not.

Unions have already begun the process of bringing workers together and encouraging open and frank discussions in the workplace and in our communities. We believe this dialog fosters the respect and brotherhood necessary for our country to move forward, even as our demographics change. And we know that when we act to strengthen protections for the most vulnerable among us, we build a movement and a system that is stronger for all of us.



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