Has ICE Abandoned Its Practice of Staying Out of Labor Disputes?

Workers Suffering Wage and Hour and Other Violations Are Increasingly Targeted for Immigration Enforcement

National Wage & Hour Clearinghouse Special Report
A periodic update on wage and hour trends
September, 2008

[Note to readers: Consider signing up for the National Wage & Hour Clearinghouse, at www.just-pay.org, where you can receive periodic reports and news on leading fair pay issues and participate in a listserv with other worker advocates working on wage theft and related issues.]

The Immigration and Naturalization Service (INS)'s Office of Field Operations issued a revised operating instruction (OI) 287.3a on December 20, 1996, instructing its investigators to inquire about any ongoing employment disputes when they received information concerning the employment of an undocumented person. The OI specified that the investigator was required to receive approval from a Director before continuing an investigation, where it appeared that the Department was being used to interfere with workers exerting their employment and labor rights. The OI has been re-designated as 33.14(h) of the Special Agent Field Manual as of April 28, 2000 and it has not been officially rescinded.[1]

It should come as no surprise that in workplaces with rampant labor and employment violations, there are workers afraid to come forward and complain of those violations. This dynamic was the fundamental reason for the OI to begin with: without willing witnesses to the labor standards violations, the unpaid wages and unsafe conditions would continue. INS (now ICE) pledged to refrain from enforcing its laws in workplaces where labor standards were at issue.

Recently, ICE has conducted several high-profile workplace raids around the country that have been connected to a U.S. Department of Labor (DOL) or other agency investigation of the work site. The most troubling example was the raid on a kosher meatpacking plant, Agriprocessors, Inc., in Postville, Iowa on May 12, 2008.[2] In that raid, ICE arrested 389 undocumented workers in what was at the time the largest enforcement operation in a single workplace. There have been several reports that prior to the ICE raid, the Iowa Division of Labor Services, Iowa's OSHA office, the DOL, and the EEOC were investigating the plant for wage and hour, child labor, health and safety, and sexual harassment allegations.[3] In addition, Mark Lauritsen, international vice-president of the United Food and Commercial Workers (UFCW), sent a letter to ICE on May 2, 2008 advising officials of an ongoing organizing campaign at the plant. Lauritsen informed ICE, "the federal and Iowa Departments of Labor (DOL) are currently in the middle of an investigation of Agriprocessors' facilities in Postville, Iowa, in order to uncover possible labor violations. The UFCW has also had an ongoing organizing campaign at Agriprocessors which began in 2006 and continues today. Any potential ICE action could not only have a chilling effect over the existing workforce which has reported some of Agriprocessors' violations in the past, but ICE action could also result in employees leaving the plant, thereby interfering with DOL's investigation that could ultimately uncover unscrupulous employer acts."[4]

Finally, and perhaps most troubling, ICE acknowledges the vulnerability of undocumented workers to exploitation, the reasoning behind the OI, in its own Application and Affidavit for Search Warrant allowing it to conduct the raid. "Those who knowingly employ or supervise illegal aliens, knowing their unlawful status, are able to exploit illegal aliens because illegal alien are unlikely to contact authorities for fear they will be arrested and/or deported."[5] ICE goes on to cite newspaper articles detailing employee abuse at Agriprocessors and a civil lawsuit on behalf of twenty Agriprocessor workers alleging violations of the Fair Labor Standards Act as further justification for its right to a search warrant to conduct its raid of the plant.[6] Instead of following the OI and allowing the labor standards investigations and organizing to continue, ICE swept into the plant, arrested hundreds of workers, and charged them with aggravated identity theft prompting the New York Times to declare, "This is enforcement run amok."[7]

Prior to the Agriprocessors raid, in Chicago, Illinois, on November 2, 2007, ICE raided O'Hare Airport and arrested 20 workers employed by Ideal Staffing Solutions, Inc. The workers were charged with fraudulently using airport security badges and many were placed in deportation proceedings. In its press release following the raid, ICE stated that it was assisted in its investigation by the DOL's Office of the Inspector General.[8] Following the raid, Working Hands Legal Clinic filed a lawsuit on behalf of ten workers, including some of the workers arrested in the raid, claiming unpaid minimum and overtime wages. The lawsuit was filed against Ideal Staffing Solutions, Inc., as well as eight other companies, including several airlines.[9]

It also appears ICE violated the OI last December when conducting an I-9 audit of Fresh Direct, a high-end on-line grocery service based in Long Island City, New York. Two unions, the UFCW Local 348 and Teamsters Local 805 were in the middle of an organizing drive of the company's 900 warehouse workers when ICE informed the company of the impending audit.[10] The workers were scheduled to vote on December 22 and 23 on whether to affiliate with the UFCW or the Teamsters. Fresh Direct informed the workers that ICE planned to inspect their employment records on December 9 and 10 and asked the workers to update their files with information proving work eligibility.[11] Over a hundred workers disappeared shortly after receiving the company memo and the union election was unsuccessful. UFCW informed NELP that it had contacted ICE weeks prior to the election and asked that it refrain or at least postpone the audit until after the elections. The request was ignored.

Particularly troubling about the Postville and Chicago raids and the Long Island City audit was the fact that ICE was aware or should have been aware that an employment dispute or organizing campaign was underway in the workplaces where they conducted its enforcement actions. Even worse are ICE's public statements about collaborating with DOL and other enforcement agencies prior to conducting its raids.

Is this a lazy ICE trolling the newswires and courthouses for any mention of immigrant workers recovering unpaid wages, or is it more cynically a defiant flouting of the OI and its underpinning policy to enforce both labor standards and immigration laws? Either way, it sets up a system where workers are taught that ICE will appear if you stand up for your rights, and where employers are rewarded for seeking out and hiring undocumented workers who will be removed if they speak up about workplace conditions.

As we continue to monitor this situation and represent immigrant victims who wish to vindicate their employment rights, it is important that employment and labor attorneys speak out about these injustices to prevent them from continuing. We also must partner with immigration attorneys who can help our clients adjust their immigration status in this country. Some of the Postville victims are applying for U-Visas, which allow victims of certain crimes who can be helpful in the investigation or prosecution of criminal activity to live and work lawfully in the United States. A growing body of plaintiffs'employment attorneys are educating themselves about these potentially useful protections that can help after the fact. Contact Rebecca Smith, rsmith@nelp.org, atNELP for more information.

This report was prepared for NELP by Hillary Ronen, Staff Attorney, La Raza Centro Legal, September 2008.
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[1] Request a copy of the OI.
[2] See ICE press release about the Postville raid: http://www.ice.gov/pi/news/newsreleases/articles/080512cedarrapids.htm
[3] See series of articles by Julia Preston in the New York Times:After Iowa Raid, Immigrants Fuel Labor Inquiries, July 27, 2008, http://www.nytimes.com/2008/07/27/us/27immig.html?_r=1&scp=4&sq=postville%20julia&st=cse&oref=slogin#; Iowa Rally Protests Raid and Conditions at Plant, July 28, 2008, http://www.nytimes.com/2008/07/28/us/28immig.html?scp=6&sq=postville%20julia&st=cse; Inquiry Finds Under-Age Workers at Meat Plant, August 6, 2008, http://www.nytimes.com/2008/07/28/us/28immig.html?scp=6&sq=postville%20julia&st=cse. Also see Criminal Investigation into Iowa Company Targeted by ICE,Wendy Feliz Sefsaf, July 11, 2008, New America Media, http://news.newamericamedia.org/news/view_article.html?article_id=6284daf3719c69e37da42cd08a40a90d.
[4] Letter from Mark D. Lauritsen to ICE dated May 2, 2008 (on file with NELP)
[5] ICE's Application and Affidavit for Search Warrant found at http://www.desmoinesregister.com/assets/pdf/ice_application.pdf and http://www.desmoinesregister.com/assets/pdf/D2108536515.PDF
[6] Id.at paragraphs 104-109.
[7] 'The Jungle,' Again, New York Times Editorial, August 1, 2008, http://www.nytimes.com/2008/08/01/opinion/01fri1.html?scp=2&sq=postville%20editorial&st=cse. For more information about the "kangaroo trials" set-up in order topush the Agriprocessor workers into accepting guilty please, also seeInterpreting After the Largest ICE Raid in US History: A PersonalAccount, Erik Camayd-Freixas, June 13, 2008, http://graphics8.nytimes.com/images/2008/07/14/opinion/14ed-camayd.pdf.Camayd-Freixas was an interpreter at the hearings for the close to 300 workers detained and charged with "aggravated identity theft" conducted in "emergency courtrooms" set up in the National Cattle Congress, a fairground in Waterloo, IA. Magistrate judges took guiltypleas from immigrants in groups of 10, then sentenced the immigrants immediately, five at a time. Although many of the workers did not know what a social security card was, they pled to a lesser charge of "knowingly using a false Social Security number" in order to serve 5months in jail followed by immediate deportation instead of waiting 6 to 8 months in jail for a trial on the "aggravated identity theft" charges which would nonetheless end in deportation. ICE prosecutors said the blanket plea agreement was directed from the DOJ inWashington and that they were not authorized to make any case by case exceptions so as not to interfere with the fast-tracking. Also see Immigrants' Speedy Trials After Raid Becomes an Issue, Julia Preston, August 8, 2008, New York Times, http://www.nytimes.com/2008/08/09/us/09immig.html?pagewanted=1&_r=1&sq=Postville%20raid&st=cse&scp=16.
[8] See ICE Press Release about the Chicago raid: http://www.ice.gov/pi/news/newsreleases/articles/071107chicago.htm
[9] Immigrant Workers Sue Employment Agency Over Unpaid Wages, VanessaBauza, July 17, 2008, Chicago Tribune, http://www.chicagotribune.com/news/local/chi-immig_suitjul18,0,2667590.story
[10] Groceries on the Computer and Immigrants in the Cold, NinaBernstein, December 22, 2007, New York Times, http://www.nytimes.com/2007/12/22/nyregion/22fresh.html?pagewanted=1.
[11] Warehouse Workers Quit in Immigration Inquiry, Nina Bernstein,December 13, 2007, New York Times, http://www.nytimes.com/2007/12/13/nyregion/13fresh.html?fta=y.