By Sarah Horton and Angela Stuesse
If you’ve ever held a formal job in the United States, you’ve probably gone through the “I-9” process—the inspection of your identity and work eligibility documents (such as a driver’s license, Social Security card, passport, or green card) and completion of a simple form documenting that you are authorized to work in the United States.
These practices of work eligibility verification were created by the Immigration Reform and Control Act (IRCA), a 1986 immigration law that, among other things, made it illegal for employers to “knowingly hire” undocumented workers and imposed penalties on those who do. Most people are unaware that, until IRCA’s passage thirty years ago, employment eligibility had nothing to do with immigration status, and there was no formal work authorization process.
People also don’t realize that this provision of IRCA has effectively depressed wages, exacerbated workplace injuries, and limited bargaining power for all workers, especially in our country’s most dangerous and lowest-paid jobs. As IRCA turns 30 on November 6, it is an opportune time to evaluate what the law has meant for industries in which immigrant workers predominate.
IRCA’s sanctions on employers breaking the law were meant to discourage employers from hiring undocumented workers. Instead, data from agricultural and poultry processing industries show that employers have devised elaborate strategies to dodge federal oversight, consigning undocumented workers to a shadowy secondary labor market in which labor laws are routinely flouted. Instead of reducing undocumented workers, IRCA forced them underground.
Employers’ size and the visibility of their brands make them more (or less) likely targets of federal immigration raids and audits. Thus, in both poultry processing and agriculture, large companies often rely on smaller and less stable labor brokers—whether formally registered or not—to supply them with a steady flow of undocumented workers.
Poultry processing giants in the South often use subcontracting to protect their bottom lines and disclaim responsibility for their hire of undocumented workers. When they do so, they relegate a segment of their labor force to substandard wages and working conditions. Labor contractors typically pay people less for doing the exact same work as direct-hire workers toiling alongside them on processing lines and fail to provide them with adequate health and safety equipment such as gloves, masks, and earplugs.
Brokers supplying labor to processing companies sometimes dodge the employment verification process entirely, hiring workers without contracts, ignoring federal employment tax laws, and paying them in cash to prevent a paper trail. When workers are hired “off the books,” they often lack workers’ compensation insurance, are ineligible to join their plant’s union, and have little recourse to hold their employers accountable.
In the agricultural industry in California, IRCA also created tiers of employers and labor conditions. Just as in the poultry industry, lax government oversight allows Farm Labor Contractors (FLCs) to violate wage and hour laws and cut corners to maximize their profit. One study in California found that the annual pay of workers employed by farm labor contractors was less than two-thirds that of workers hired by growers directly. Indeed, workers in California’s Central Valley reported that FLCs were more likely than large agribusiness companies to deny them breaks, water and shade, and legally-mandated overtime wages.
Large agribusiness companies often have official policies of hiring only workers with valid documentation, but facing a dearth of applicants with legal status, labor supervisors for large firms often “mask” the identities of undocumented workers by requiring that they work under the valid documents of citizens or legal permanent residents. According to one worker, labor supervisors sometimes qualify the official company policy. “They say, ‘Yes, we want good Social Security Numbers, but they don’t have to be yours.’”
The lesson in these stories is that criminalizing the employment of undocumented workers has done little to curb employers’ appetite for such laborers. Instead, employers have devised workarounds to skirt IRCA’s employer sanctions that only render undocumented workers more vulnerable. Making workers disappear—either through cash pay or through loaned documents—deprives them of proof of having been company employees. This doesn’t just insulate corporations from being held accountable for unlawfully hiring undocumented workers; by limiting injured workers’ abilities to obtain medical treatment and compensation and by complicating efforts to organize for better wages and working conditions, it also reduces labor costs on the backs of our nation’s most vulnerable.
As politicians advocate for stricter forms of employer verification—such as E-Verify, an online platform that matches employees’ reported names and Social Security Numbers—we must first heed the lessons of IRCA. Criminalization of the hire of undocumented workers has only pushed them further into the shadows. E-verify will exacerbate this problem.
Nothing short of decriminalizing the employment of undocumented workers will encourage fair and transparent labor practices. You can help create workplaces in which labor rights are respected by supporting comprehensive immigration reform that decouples our country’s immigration and employment laws. This won’t just help immigrants; by eliminating the shadow economy that augments corporations’ undue power over workers, it will make our nation’s workplaces safer and better for us all.
Sarah Horton is Associate Professor of Anthropology at the University of Colorado, Denver and author of They Leave their Kidneys in the Fields: Illness, Injury, and Illegality among U.S. Farmworkers.
Angela Stuesse is Assistant Professor of Anthropology at the University of North Carolina, Chapel Hill and author of Scratching Out a Living: Latinos, Race, and Work in the Deep South.