(Economic Policy Institute) — Immigration is the government’s top federal law enforcement priority, while labor standards enforcement agencies are starved for funding and too understaffed to adequately protect workers.
For too long, employers have lobbied members of Congress to keep funding unrealistically and disastrously low for agencies like the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB)—so low that they cannot adequately fulfill their missions. The result is an environment of near impunity for rampant violators of labor and wage and hour laws, a situation brought to light by the recent wave of labor organizing across the country as workers make it clear that they are unwilling to continue accepting unsafe and unjust conditions on the job.
One clear way to understand the priorities of a government is to look at how it spends money. If it’s true that “budgets are moral documents,” then the U.S. Congress, for at least the past decade, has placed little value on worker rights and working conditions. An analysis of federal budget data from 2012 to 2021 reveals top federal law enforcement priorities of the U.S. is to detain, deport, and prosecute migrants, and to keep them from entering the country without authorization. Protecting workers in the U.S. labor market—by ensuring that their workplaces are safe and that they get paid every cent they earn—is barely an afterthought.
This situation leaves migrant workers especially vulnerable to employer lawbreaking. Without enough federal agents to police employers, a massive immigration enforcement dragnet threatens workers with deportation. Employers take advantage of the resulting climate of fear to prevent workers from reporting workplace abuses. Workers who find the courage to speak up can be retaliated against in ways that can set deportation in motion.
Despite the funding gap, the U.S. Department of Homeland Security (DHS), who is in charge of immigration enforcement could encourage workers to speak out without fear in order to assist labor standards enforcement agencies. By using prosecutorial discretion to protect migrant workers involved in labor disputes and by issuing temporary grants of deferred action or parole, DHS can ensure migrant workers can pursue claims against employers without the threat of retaliation and deportation.
DHS also has the authority to provide workers with employment authorization so they can support themselves financially during the dispute process.
The use of prosecutorial discretion can be a force multiplier for understaffed labor enforcement agencies, assisting them in their mission to hold lawbreaking employers accountable.
The wide gap in government funding between immigration and labor standards enforcement has persisted for at least a decade and is largely the same over the past decade and across different presidential administrations.
So why does any of this matter? The wide funding gap between immigration and labor standards enforcement hurts all workers—including migrant workers. It is increasingly more difficult to ensure that all workers, whether born in the U.S. or abroad, are treated fairly in the workplace.
Budgets for labor standards enforcement agencies are shrinking, while employer tactics such as forced arbitration prevent workers from suing in court when they are robbed by their employers. Further, a growing body of research shows that workers attempting to change jobs face many challenges.
Without a strong mandate and funding from Congress to enforce labor standards, the executive branch can severely limit the work that labor agencies do on behalf of workers through executive actions, regulatory policy, and even political appointees—something the former Trump administration specialized in.
When immigrant workers can’t stand up for their rights, it degrades labor standards for their American counterparts as well. Perhaps that is why employers rob immigrant employees at much higher rates than those who are U.S. citizens.
All workers face too much risk if they act to make their workplaces safer and fairer. But for nearly 8 million workers—roughly 5% of the U.S. labor force those risks include deportation and family separation because they lack immigration status.
Temporary migrant workers, those employed through temporary visas, are a significant and growing segment of the workforce, recently at roughly 2 million. Because their visas are almost always tied to a single employer, these workers are in danger of retaliation if they speak up about conditions such as substandard health and safety procedures. Their employers control their livelihoods and their visa status.
No worker should ever have to risk deportation in order to file a claim with a labor agency.
The Department of Homeland Security can help bridge the gap and protect workers by empowering migrant workers to come forward and report employer lawbreaking and workplace violations without fear.
The Biden administration, to its credit, has taken some important steps to protect migrant workers. The administration ended the ICE practice of mass raids at worksites to enforce immigration laws. The NLRB issued updated guidance and policies to protect immigrant labor rights attempting to join or form unions, and DOL issued a document explaining immigrant workers who report labor and workplace abuse can seek DOL’s support for immigration status protections that DHS can provide.
Immigrant and worker advocates have called for these improvements, and such clarification is needed for workers who understandably remain skeptical about following the guidance of these agencies given the decades of DHS enforcement actions against workers.
DHS should grant deferred action and parole to migrant workers in labor disputes with more frequency and regularity, across a broad range of disputes, and in response to a broad swath of labor and workplace violations. Providing a path for workers engaged in labor disputes to remain in the U.S. through deferred action or parole would allow both undocumented workers and temporary workers with nonimmigrant visas (whose status is tied to their employers) to aid in the enforcement of acceptable labor standards. Deferred action and parole from DHS may also include an employment authorization, which would allow workers to seek lawful employment elsewhere. a measure that would allow them to support themselves and their families while pursuing their claims.
Another benefit of this policy relates to the two potential options for workers who are victims of human trafficking or certain other crimes and are in need of immigration status protection—T and U visas. At present, there are large backlogs and lengthy processing times for such visas, leading to years-long wait times for their issuance. Prosecutorial discretion by DHS could benefit workers if it were granted much more quickly than T and U visas; and it could benefit workers in labor disputes who don’t meet the narrow requirements for the T and U visas, which currently are not applicable to many labor-related crimes.
The ability of migrant workers to come forward and report employer abuse could act as a force multiplier for DOL’s understaffed and underfunded Wage and Hour Division and Occupational Health and Safety Administration while enabling more migrant workers to exercise their labor rights under the National Labor Relations Act without fear.
Congress should pass legislation to protect workers from the threat of retaliation and deportation and provide new funding for labor standards enforcement. Congress should prioritize the reintroduction and passage of the Protect Our Workers from Exploitation and Retaliation (POWER) Act introduced in 2019 by Rep. Judy Chu (D-Calif.) and Sen. Robert Menendez (D-N.J.). The Act, supported by various unions and migrant worker advocacy organizations, would expand access to U visas for migrant workers who report workplace violations, increase the number of available U visas, and extend eligibility to more labor-related crimes.
The POWER Act would also strengthen the investigative powers of labor standards enforcement agencies and permit postponement of deportation of migrant workers who file a legitimate claim or a witness to one. Workers would also be eligible for employment authorization so they can work while their claims are being processed.
Finally, Congress can and should take action to narrow the funding disparity between immigration enforcement and labor standards enforcement agencies. A dramatic increase in appropriated funding would allow the agencies to conduct more investigations and keep pace with the number of workers they are in charge of protecting, while holding more lawbreaking employers accountable.
So far, Congress appears reluctant to fund protections of workers, yet more than willing to provide a blank check for immigration enforcement. Those who care about wages and working conditions should act quickly to narrow the gap by drastic funding increases for enforcement of labor standards. They should also consider decreasing funding for immigration enforcement given the detrimental impact that such actions can have on labor standards.