Right wing discovers long-established Labor Dept. policy on unauthorized workers

Right-wing media shocked that Dept. of Labor wants to crack down on exploitation of workers, including the undocumented

"We Can Help" campaign aims to inform workers about "the broad array of services offered by the Department of Labor." Solis announced the "We Can Help" campaign on April 1. A Labor Department press release states, "The effort, which is being spearheaded by the department's Wage and Hour Division, will help connect America's most vulnerable and low-wage workers with the broad array of services offered by the Department of Labor." Contrary to the suggestion made by some bloggers that the campaign and hotline were created solely for undocumented workers, they are aimed at all vulnerable workers, regardless of immigration status.

Fox & Friends: "That's crazy" and "unbelievable." On June 22, Fox & Friends aired the Labor Department's public service announcement for the campaign, which has been on the Internet since April 1, but was only recently discovered by the right-wing media. In the video, Solis states, "Remember, every worker in America has a right to be paid fairly, whether documented or not." Co-host Brian Kilmeade stated, "Is that unbelievable? That's the most flagrant --" and co-host Steve Doocy added: "That's crazy. That's a public service announcement made by the federal government of the United States of America."

Perino: "[M]ost of your viewers probably just fell out of their chairs as they watched that video." On June 21, Fox News' Greta Van Susteren aired the public service announcement and Fox News contributor Dana Perino responded: "I think that most of your viewers probably just fell out of their chairs as they watched that video." Perino went on to suggest that the Labor Department should not "turn a blind eye to your immigration status" while enforcing labor standards, despite the fact that during the Bush administration the Labor Department also said it would "enforce the Fair Labor Standards Act without regard to whether an employee is documented or undocumented." During the segment, Van Susteren added, "[T]he whole concept of sort of picking and choosing what laws we're going to enforce is rather awkward."

Fox Nation: "Obama Labor Chief: Illegals Have a Right to Fair Wages." On June 21, The Fox Nation posted the public service announcement under the headline: "Obama Labor Chief: Illegals Have a Right to Fair Wages":

Hot Air: "The only interest that the government should have is enforcing the border and immigration laws." Linking to The Fox Nation, Hot Air blogger Ed Morrissey stated, "Now suddenly Secretary of Labor Hilda Solis has established a hotline number, not for people to tip the government to employers breaking the law, but to act as an agent for illegals to make sure they get paid 'fairly.'" Morrissey added, "Instead of enforcing the law - which is, after all, the raison d'être of the executive branch -- they're conspiring to help people break it, and with our tax dollars, no less," and asserted that "[t] he only interest that the government should have is enforcing the border and immigration laws."

The Daily Caller: "White House wants illegals to be paid 'fairly' for their work." The Daily Caller posted the video on June 22 under the headline, "White House wants illegals to be paid 'fairly' for their work." The post further stated: "Secretary of Labor Hilda L. Solis says in a new public service announcement that, 'whether documented or not,' workers in the United States has [sic] the 'right to be treated fairly' and paid for their work. To that tend, the administration has established a telephone number that allows immigrants to report their working conditions."

Applying labor standards to undocumented workers is established practice

Legal experts: "Regardless of their legal status," workers are protected by Fair Labor Standards Act. The Associated Press reported on June 7, 2006, that a study by professors at Tulane University and the University of California at Berkeley found that immigrant workers involved in post-Hurricane Katrina reconstruction are "vulnerable to exploitation." The article further noted:

Under federal labor law, illegal immigrants are afforded the same health and safety protections as documented workers. Regardless of their legal status, laborers can sue most employers under the Fair Labor Standards Act for violation of the minimum wage law and overtime regulations, the researchers said.

Courts have said FLSA applies to unauthorized workers. Dennise A. Calderon-Barrera wrote in a 2003 article for the Harvard Latino Law Review that the Immigration Reform and Control Act of 1986 (IRCA) "makes it unlawful for an employer knowingly to hire or continue employing unauthorized aliens or to fail to verify the identity and work authorization of an individual hired for employment." Calderon-Barrera added, "Courts, both before and after the passage of the IRCA, have recognized that undocumented workers are employees as defined" in the Fair Labor Standards Act.  

Congress did not intend for 1986 immigration reform law to "undermine or diminish in any way labor protections." Calderon-Barrera also noted that in 1986, the House Judiciary Committee said it did not intend for employer sanctions to limit the power of labor standards agencies "to remedy unfair practices committed against undocumented employees":

It is not the intention of the Committee that the employer sanctions provisions of the bill be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by existing law.

Calderon-Barrera also wrote that the House Committee on Education and Labor "recognized that limiting the powers of labor agencies 'to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by these agencies . . . would be counter productive of [Congress'] intent to limit the hiring of undocumented employees.' "

Bush Labor Department reportedly acknowledged that FLSA protects workers "without regard to whether an employee is documented or undocumented." The Bush administration has been criticized for "lax enforcement of labor laws." However, Bush Labor Department officials acknowledged in interviews that the Fair Labor Standards Act does not mention immigration status. On January 17, 2006, The Dallas Morning News reported on labor law violations by companies involved in Hurricane Katrina clean-up. The report noted:

The Labor Department said it "recognizes that many workers are reluctant to file complaints because of their immigration status."

Its wage and hour division enforces the Fair Labor Standards Act, which provides for minimum wage and overtime pay "without regard to whether an employee is documented or undocumented," [spokeswoman Dolline] Hatchett said.

 From a February 26, 2007, Rocky Mountain News article:

The Davis-Bacon Act, which applies to all federal construction projects, requires that workers receive prevailing wages plus fringe benefits, which is money that normally goes to an employee in the form of health insurance and other perks.

The law applies to all workers, whether in the country legally or not, said Alex Salaiz, district director of the U.S. Department of Labor's Wage and Hour Division in Denver.

All employees who work for companies that generate at least $500,000 in gross sales must pay minimum wage and overtime under the Fair Labor Standards Act, Salaiz said.

Bush Labor Department: "[O]nly DHS has the authority to enforce the employer sanction provisions." In Congressional testimony on July 25, 2006, Al Robinson, then-acting administrator of the Labor Department's Wage and Hour Division (WHD) explained that the Immigration and Nationality Act "provides DHS with the responsibility for investigating compliance" with the employer sanctions provisions and that "no such statutory authority with the I-9 is provided to the Department of Labor."

Bush Labor Department: Labor Dept. responsibility "is the effective enforcement of labor laws to ensure that all covered workers, irrespective of their immigration status, are afforded full benefits and protections." In his testimony, Robinson stated that "WHD's primary responsibility is the effective enforcement of labor laws to ensure that all covered workers, irrespective of their immigration status, are afforded full benefits and protections. Labor law enforcement not only helps ensure fairness and acceptable workplace standards, but also helps foster a level competitive playing field for employers who seek to comply with the law." Robinson also stated that the Department of Labor does not enforce the law prohibiting employers from hiring unauthorized workers "so as to not discourage workers, regardless of their immigration status or that of their co-workers, from reporting potential violations of employment standards." From the hearing:

The INA provides DHS with the responsibility for investigating compliance with the I-9 requirements, assessing civil penalties and initiating appropriate legal proceedings. No such statutory authority with the I-9 is provided to the Department of Labor (DOL).

[...]

WHD's primary responsibility is the effective enforcement of labor laws to ensure that all covered workers, irrespective of their immigration status, are afforded full benefits and protections. Labor law enforcement not only helps ensure fairness and acceptable workplace standards, but also helps foster a level competitive playing field for employers who seek to comply with the law. The INA provides only a limited role for DOL in reviewing the I-9 forms. As noted previously, only DHS has the authority to enforce the employer sanction provisions of the INA. These respective roles of DHS and DOL are reflected in the MOU [Memorandum of Understanding].

The MOU obligates WHD's investigative staff to perform two activities to assist DHS in its enforcement of Section 274A of the INA. First, during any onsite visit to an employer's premises, WHD's staff advises employers about their legal responsibilities to verify the employment eligibility of potential employees; advises employers about the anti- discrimination provisions of the INA; and provides employers with a copy of the DHS publication Handbook for Employers: Instructions for Completing the I-9 and information from the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

The second activity WHD performs is an inspection of the I-9 forms. WHD conducts such reviews of completed I-9 forms only in non-complaint-based investigations under the FLSA and other laws it enforces so as to not discourage workers, regardless of their immigration status or that of their co-workers, from reporting potential violations of employment standards. In other words, these reviews are limited to directed investigations that are initiated by WHD.

Enforcement of labor laws is widely seen as disincentive to hiring undocumented workers

Study: "Workplace Violations Are Severe and Widespread in Low-Wage Labor Markets." A 2008 survey of 4,387 low-wage workers in Chicago, Los Angeles, and New York City found that many employment and labor laws are regularly and systematically violated, impacting a significant part of the low-wage labor force in the nation's largest cities." As The New York Times noted, "The study found that women were far more likely to suffer minimum wage violations than men, with the highest prevalence among women who were illegal immigrants."

Labor Department: "No employer should have an unfair advantage because he employs undocumented employees and doesn't pay them." The Wage and Hour Division of the Labor Department states on its website: "WHD will continue to enforce the FLSA and MSPA without regard to an employee's immigration status. No employer should have an unfair advantage because he employs undocumented employees and doesn't pay them."

Krikorian: "[T]he more it costs to hire illegal aliens, the more employers might turn to legal workers." An April 23, 2006, New York Times article reported that Mark Krikorian, executive director of the Center for Immigration Studies, which favors greater restrictions on immigration, said of centers helping unauthorized workers file labor complaints: "The bad part is these groups become lobbies for illegal aliens ... On the other hand, they help people stiffed out of their wages. That can serve a purpose because it raises the price of hiring illegal aliens, and the more it costs to hire illegal aliens, the more employers might turn to legal workers." A March 2, 2005, Dallas Morning News article (accessed via Nexis) also quoted Krikorian:

"It is good that labor laws and wage and hour laws apply to illegal immigrants," he said, noting that if the laws didn't apply, such workers would be even more attractive to employers.

"But the illegal alien needs to be deported after he gets compensated," Mr. Krikorian said.

Bush admin: Enforcing labor standards "will help to reduce the economic incentive for such illegal employment practices." The Bush administration's 2003 budget states:

The Budget maintains resources for the Wage and Hour Division which are assigned to areas where employment of illegal immigrants is most prevalent. The targeting of labor standards enforcement efforts in those industries and geographic areas where authorized workers are most prevalent will help to reduce the economic incentive for such illegal employment practices and will, in turn, help reduce illegal immigration.

Drum Major Institute: Punishing workplace violations protects American workers from wage theft. Amy Traub, research director at the Drum Major Institute for Public Policy wrote on April 8 that cracking down on workplace violations is "the best way to protect U.S. citizens both from blatant wage theft and from the more insidious downward pressure on wages, benefits, and working conditions that comes from having a large population of workers who cannot effectively assert their right to the minimum wage, overtime, and other fundamental workplace protections." Traub added:

As I noted last year in The Nation:

Because undocumented workers are often too afraid of deportation to speak up about workplace abuses, unscrupulous employers can cut immigrants' wages and benefits and degrade working conditions with impunity. Exploiting undocumented workers can drag down wages for other workers, especially those with little education: as their employers are forced to compete with companies that exploit immigrants, entire industries may see wages decline.

Unauthorized workers "accept whatever wage is offered," "don't protest out of fear of being fired or deported." Jennifer Gordon of Fordham Law School wrote in a March 9, 2009, New York Times op-ed that "millions of undocumented immigrants accept whatever wage is offered. They don't protest out of fear of being fired or deported." Gordon has reportedly said that increasing enforcement of wage and safety laws "would reduce the incentive to hire the undocumented, and raise standards for all workers."