Written by Aaron Nilson
A discussion on the link between immigration status and wage theft and its role in the exploitative relationship between employers and day laborers.
It is impossible to consider the work of the Direct Action Team (DAT), a group of volunteers in the Denver metro area who assist victims of wage theft to recoup their lost wages, without being mindful of how many day laborers’ experiences are shaped by their immigration status. According to Abel Valenzuela Jr. and coauthors, 75% of day laborers in the United States are undocumented. The great majority of those served by the DAT come from Latin America, and while the DAT does not track statistics or ask about the immigration status of the laborers it helps, it is widely supposed that most are undocumented.
Such assumptions are supported by workers’ occasional insinuations; others freely admit that they are undocumented. The reality of these individuals’ immigration statuses affects significant aspects of their lives, not least their professional lives. Elizabeth Fussell writes that lack of legal status is often employers’ principal argument for withholding pay from day laborers, despite the fact that such an excuse is legally invalid for denying payment for work already completed. From late March to mid-June, along with a group of students from Professor Rebecca Galemba’s Qualitative Research Methods course at the Josef Korbel School of International Studies, I participated as a volunteer with the DAT. At one of the first DAT meetings that my group and I attended, Amy Czulada and the other leaders of the team explained that lack of employment authorization or a valid social security number, two documents which would be difficult to obtain without legal immigration status, was a trend that the team has witnessed extensively since its inception. Employers frequently refuse to pay for completed work because they were never presented with such documentation from the worker. Curiously, this is also an offense against the employers, who are legally required to verify potential workers’ documentation before hire and are prohibited from hiring individuals without employment authorization which is usually dictated by their legal status in the country. In effect, this further nullifies and delegitimizes employers’ traditional justification for denying wages. Nevertheless, the practice continues as employers exploit laborers’ fear of deportation to get away with paying unfair wages, if not outright robbing them of payment.
For undocumented day laborers, the threat of deportation and being removed from the United States is constant. In his ethnography of jornaleros, or day laborers, titled Jornalero: Being a Day Laborer in the United States, Juan Thomas Ordoñez explains the rationale of this fear of deportation: “…it is actually the very real certainty that immigration officers can appear anywhere…” The nexus between deportation and wage theft occurs when an undocumented worker obtains work from an employer who recognizes that they are most likely without legal status in the country. Confident that the worker would not report any infraction to law enforcement, the employer decides that the risk of not paying is low. When the worker does not report the crime, the practice becomes more widespread.
As a volunteer with the DAT for three months, I focused primarily on communicating and interviewing workers while my partners did so with employers. Informed by these interchanges, we, together with the worker, would devise “direct action” strategies, such as filing small claims court paperwork or organizing demonstrations outside an employer’s home, to pressure the employer to pay. One worker that I was paired with explained to me that he had been victim to wage theft twice. He was due $3,000 the first time he was victim to wage theft. He revealed that he was scared to report the infraction because he did not want to be forced to return to his native Mexico. Years later when he was robbed of his wages again (the case for which another DAT member and I assisted him), he decided that he was going to file a report against the employer. He came to the conclusion that if he was not going to be paid for the work that he does here, he could not justify living here because his wife and children live in Mexico. He is only in the United States to work here.
As he recounted the most recent incidence of wage theft against him, he also revealed the necessity to fully comprehend the consequences of one’s actions when they are undocumented. While arguing with the employer who owed him money, he remarked on how he wanted to punch or hit the obstinate employer who clearly seemed to be trying to provoke him into a physical confrontation. “I’m not stupid though,” asserted the worker, detailing that he knew that the employer was provoking him so that the police would become involved and then report him to immigration who could deport him. While one with immigration status in the United States might have given in to the incitement, a worker without status must constantly weigh the outcomes of decisions they make in reference with their work. Because workers depend on jobs where their legal status will not be scrutinized, they are forced into an inequitable relationship with their employer who knows that the worker would rather risk being paid less than stand up to the employer by involving law enforcement who has authority to penalize the employer but also could remove the worker from the country.
Our group also attended “Know Your Rights” sessions that some members of the DAT team present. These sessions usually involve one or two DAT members who speak to individuals at liebres, or areas where day laborers gather and wait for people to come hire them. They give small presentations to workers there about their rights as day laborers and also if Immigration and Customs Enforcement (ICE) were to try to arrest them and initiate immigration proceedings. On one occasion our team from class attended a presentation; we had about seven of us to talk to about twelve workers. Most of us were Caucasian and when we tried to speak with some of the workers who all, if not nearly all, were all Latino, some tried to inconspicuously avoid us. Others who did not walk away from us matter-of-factly stated that they did not wish to learn about their rights if ICE agents came to look for them, perhaps in attempts to conceal their immigration status or conceding that should ICE want to initiate deportation proceedings, they would. Throughout this experience, I could only think about how having a large group of mostly white individuals come talk about immigration would be concerning for day laborers who were likely undocumented.
Others at the street corner were very candid about their immigration status. One man asked us if we had any advice about his individual immigration court case, something that immediately exposed his legal status in the country. Others were engaged and asked other hypothetical questions that intentionally or unintentionally divulged their immigration status.
A unique case that we came across at a DAT meeting involved two men who had come to the United States legally with work visas but who were dismissed from their landscaping jobs after being given rides from an individual who their supervisor did not like. After their arbitrary firing, they were never given overtime payment that they were due. More concerning, however, was that their visas were contingent on their employment with that company. As such, they most likely lost their legal status in the country after being fired, leading to the DAT’s suggestion of pursuing legal immigration counsel.
The threat of wage theft, linked inextricably to immigration is genuine among day laborers. According to Ordoñez, “Most jornaleros consider the frequency of abuse to be a function of their immigration status, which is many times thrown in their face as a threat when they try to complain.” Unscrupulous employers acknowledge their employees’ great risk to denouncing wage theft, especially those pertaining to their immigration status. With little legal protection for day laborers, the risk for employers is small. Exposition of employers’ manipulation of immigrant day laborers is a critical step in diminishing the reach of wage theft. Through participation with the DAT, it is clear to me that the team understands this mindset that employers hold. The DAT’s noble energies counter employer dishonesty while upholding worker dignity by mitigating the inequality and exploitation often characterizing the employer-day laborer relationship.
This blog is part of a series written by a group of students who conducted participatory research on wage theft and the Wage Theft Direct Action Team in the Spring of 2017. To read more of the group’s research findings, visit their introductory blog here.