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been re-designated as 33.14(h) of the Special Agent Field Manual as of April 28, 2000 and it has not been officially rescinded.[1]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.
________________________________
[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.

Sept. 25: Night of 1,000 Conversations

Engage friends, family, and neighbors in discussions around the Hold Department of Homeland Security Accountable campaign.

Host a Conversation
Hosting a Conversation is easy and fun.

Step 1: Register your Conversation.
Step 2: Download the "Night of 1,000 Conversations Toolkit."
Step 3: Get ready for your Conversation.
Invite family and friends to your house or another meeting place.Use stories, RWG factsheets, or other conversations starters togenerate discussion.Join a Preparatory Conference Call with RWG staff to get tips and ask questions.
Step 4: Have your Conversation.
Have your participants talk about their personal experiences.
Step 5: Send us your feedback.
Have fun. Keep it simple. Use dialogue to create change.

CONVERSATION STARTERS
RWG Fact Sheets
RWG Fact Sheet on Raids (Spanish)
RWG Fact Sheet on Detention & Due Process (Spanish)
RWG Fact Sheet on Naturalization Backlogs (Spanish)

Videos / Games
Death By Detention Youtube video from Breakthrough
Swift Raids Video United Food and Commercial Workers (UFCW)
ICED, a video game by Breakthrough

News Articles
Immigration Enforcement: Raiding Children's Dreams (The Huffington Post)
The Politics Driving Mississippi's ICE Raids (New America Media)
Immigration Detention: The Case for Abolition (The Huffington Post)I
ll and in Pain, Detainee Dies in U.S. Hands (New York Times)
Justice Detained (KoreAm Journal)
System of Neglect; As Tighter Immigration Policies Strain Federal Agencies, the Detainees in Their Care Often Pay a Heavy Cost (Washington Post)
The Name Game; The FBI's incompetence is punishing immigrants who playby the rules (Washington Post)
Some Immigrants Face Long Waits to Become U.S. Citizens (Kansas City InfoZine)

Read more:
http://nightof1000conversations.org/host/

"Democracy Now!": David Bacon on Immigration Raids, Guest Worker Programs

"Michael Chertoff keeps saying it over and over and over...[that] we're going to shut the back door and open the front door. And what that means is that ICE is trying to push for the establishment of new guest worker programs, so that people can come here as workers, but only as workers, without rights, without eventually getting political rights, without becoming citizens, certainly without voting, but whose labor is going to be used in the economy."

Increased Raids and Checkpoint Arrests Endanger Undocumented Immigrants Threatened by Gulf Coast Storms
Amy Goodman and Juan Gonzalez interview David Bacon, "Democracy Now!"
September 12, 2008

Undocumented immigrants along the hurricane-ravaged Gulf Coast have resisted mandatory evacuation orders out of fear they could be arrested and deported at checkpoints. The climate of fear around deportation has worsened as the Immigration and Customs Enforcement Agency, or ICE, continues to step up its raids across the country, with two of the largest raids in US history taking place in the last five months. We speak to David Bacon, award-winning photojournalist, labor organizer and immigrant rights activist and author of Illegal People: How Globalization Creates Migration and Criminalizes Migrants. [...]

Read or listen to the full interview:
http://www.democracynow.org/2008/9/12/increased_raids_and_checkpoint_arrests_endanger

Immigrants Fight Restrictions at Home

There's punishment without crime for some noncitizens facing immigration troubles, advocates say.


By Gabriela Reardon, City Limits Weekly
September 8, 2008

Natalia Puriy's appearance at an immigration court in Florida in January 2006 began like many that she and her husband, James Turner, had attended previously. The judge once again admonished the government attorney to obtain the necessary paperwork so he could rule on Puriy's petition for political asylum, and then adjourned the hearing for another six months.

But after the hearing, as the couple entered the building's elevator, two immigration agents followed. Turner recalls that one agent shoved him aside and asked his wife if she was Natalia. When she said she was, he proceeded to detain the 48-year-old Ukrainian immigrant without explanation. That wasn't what Puriy, a teacher, was expecting when she applied for America's protection following a wave of killings in her native Ukraine that targeted outspoken anti-communist teachers, leading her to fear for her life.


"I asked him who he was and what he was doing, and he said they were retaining all people coming in. When I demanded his name, he slammed his badge in my face and told me to shut up and get out of his way," Turner, a U.S. citizen, said in a recent interview. [...]


Read the full article:
http://www.citylimits.org/content/articles/viewarticle.cfm?article_id=3616

Fight FAIR! A Letter from America's Voice

Dear Friend,

Members of a recognized hate group, FAIR, headed to Washington this week to lobby Congress for support of mass-deportation tactics in the guise of "immigration reform."

The Federation for American Immigration Reform (FAIR) has been designated a hate group by the Southern Poverty Law Center and denounced by nearly every major civil rights group in the nation. However, they continue to appear in Washington and in the news as 'legitimate' voices on immigration reform.

Please take a moment to warn your Member of Congress now about who is coming to visit:
http://www.americasvoiceonline.org/fightfair

More and more, the extreme has become mainstream on the airwaves, on the campaign trail, and in the halls of Congress. As quoted in the Washington Post, FAIR has said:

"It's almost like [Asians and Hispanics] are getting into competitive breeding"-FAIR President

"Just because one believes in white separatism that does not make them a racist"-FAIR staff

"As Whites see their power and control over their lives declining, will they simply go quietly into the night? Or will there be an explosion?"-FAIR founder and board director

We need your help to spread the word
http://www.americasvoiceonline.org/fightfair

Please take a moment to visit the site, where you can learn about FAIR's extremism, send a quick email to your Member of Congress, and forward this to your friends!

Thank you for taking action today. Together, we can fight back and move America forward.

Sincerely,
Adam Luna
Political Director
America's Voice
http://www.americasvoiceonline.org/

Crimes Less Likely From Immigrants

By Elaine Silvestrini, The Tampa Tribune
Published: September 7, 2008

TAMPA - When three Mexican nationals were arrested for a series of rapes in the Tampa Bay area, public officials battled over how law enforcement handles illegal aliens and some residents complained that the immigrant crime problem had gotten out of hand.

But illegal immigrants actually are less likely than others to commit violent crimes, said researchers who study the issue. In part, they say, that's because the immigrants don't want to draw attention to themselves. [...]

Read the full article:
http://www2.tbo.com/content/2008/sep/07/me-crimes-less-likely-from-immigrants/

Virtual Fence for Mexico Border Is Put Off

U.S. to Turn Focus to Physical Barrier as Boeing Struggles
By August Cole, Wall Street Journal
September 10, 2008

WASHINGTON -- The U.S. Customs and Border Protection is putting off plans for a virtual fence being built by Boeing Co. along the Mexico border and instead will focus on getting a physical fence in place as it tries to implement a border-security plan that is already late and over budget.

Both the virtual and the physical fences were the anchors of a 2005 Bush administration plan called the Secure Border Initiative. But the plan to secure the U.S.-Mexico border has been plagued by cost overruns and delays and has come in for withering criticism from Congress. [...]

Read the full article:
http://online.wsj.com/article/SB122100338794017091.html?mod=todays_us_page_one/quotes/main.html?type=djn&symbol=BA