—Barrington Williams, Michael Lyles, B1Daily

There is a contradiction sitting in plain sight inside the American economy. Politicians argue endlessly about immigration while white employers in agriculture, construction, food processing, hospitality, delivery and other labor-intensive industries continue benefiting from immigrant workers whose economic vulnerability can make them easier to underpay, intimidate or silence.

This is fundamentally a labor-law and power problem. The more important question is why American businesses are sometimes able to profit from workers whose immigration status, language barriers or dependency on an employer makes challenging abuse unusually dangerous.

That question has a disturbing answer: because vulnerable labor can be profitable when enforcement is weak and the punishment for breaking the rules costs less than obeying them.

The United States should close that loophole.

Not by banning immigrant labor. Immigrants are deeply embedded in the American workforce and legally employed immigrants have every right to earn a living.

What should be effectively banned is a business model built around using immigration vulnerability to obtain cheaper, more compliant labor than an employer could obtain under genuinely competitive conditions.

Immigration Status Can Become a Workplace Weapon

The central problem is not simply that immigrant workers sometimes earn low wages.

It is the enormous imbalance of power that can exist between certain workers and their employers.

A worker who believes losing a job could threaten a visa, housing arrangement or ability to remain in the country may tolerate conditions another employee would immediately challenge.

That can include unpaid overtime, illegal deductions, unsafe transportation, crowded employer-provided housing, wage theft or threats of retaliation.

The National Employment Law Project argues that employers sometimes use immigration status or threats involving immigration enforcement against workers who attempt to exercise workplace rights. Such threats can discourage complaints and make labor laws harder for authorities to enforce.

That creates an obvious economic incentive for a bad employer.

A frightened workforce is cheaper to control than an empowered one.

And once businesses discover that formula, respectable corporate language can disguise something ugly underneath it.

Call it labor flexibility.

Call it workforce optimization.

Call it temporary staffing.

But if profitability depends on workers being too afraid to demand the wages and protections legally owed to them, America is not looking at innovation.

It is looking at exploitation wearing a name badge.

The H-2A System Shows How Abuse Can Happen

America’s H-2A agricultural visa program illustrates both the necessity of immigrant labor and the risks created when workers depend heavily upon particular employers.

The program allows agricultural employers to bring temporary foreign workers into the United States when sufficient qualified American workers are unavailable. Federal rules are specifically supposed to prevent those workers from depressing the wages and working conditions of American workers.

That safeguard is crucial.

Because when immigrant labor is exploited, American workers can lose too.

Consider what the Department of Labor found in a California case involving a Nebraska construction company.

Federal investigators determined that the company brought Mexican workers into the United States through the agricultural H-2A program but actually used them for construction work. A federal administrative judge ordered more than $288,000 in wages paid to 43 workers and more than $63,000 in penalties. The Department of Labor said the employer had misrepresented the jobs, shortchanged workers and exposed them to unsafe conditions.

The case also illustrates why this debate cannot be reduced to immigrants versus Americans.

The Department of Labor concluded that the arrangement discriminated against American construction workers as well.

Cheaply exploited immigrant labor can become a mechanism for undercutting domestic labor.

That should alarm organized labor, immigration advocates and American workers simultaneously.

Another Farmworker Case Shows the Same Problem

In another federal enforcement action, a court ordered major agricultural employer Grimmway Enterprises to pay approximately $427,000 in back wages and penalties after investigators found H-2A violations in Washington state.

The Labor Department said workers had been underpaid and that investigators discovered problems involving housing and transportation safety.

These are not hypothetical academic arguments about what corporations might do.

Federal labor cases demonstrate what some employers actually have done.

And that is precisely why simply telling workers to “report abuse” is inadequate.

A person living paycheck to paycheck may already hesitate before challenging an employer.

Add immigration uncertainty, employer-controlled transportation or housing, unfamiliarity with American law and limited English proficiency, and the balance of power becomes even more severe.

The law must account for that reality.

Wage Theft Is Not a Minor Crime Against a Paycheck

Wage theft deserves much more public outrage than it receives.

The National Employment Law Project estimates that approximately $15 billion in wages are stolen from workers every year in the United States. It also reports that most workers experiencing wage theft do not pursue remedies, often because of fear of retaliation.

Think about the vocabulary America uses.

If an employee takes $2,000 from a cash register, police may be called.

If an employer deliberately deprives dozens of workers of thousands of dollars in wages, society frequently treats the matter as a regulatory dispute.

Why?

Money does not become less stolen because it traveled through payroll software.

America should treat systematic wage theft as serious economic misconduct rather than merely a cost of doing business.

Cheap Immigrant Labor Can Suppress Everyone’s Bargaining Power

There is another reason stronger protections matter.

Exploitation does not stop at the worker being exploited.

Imagine an employer normally needs to pay $23 an hour to attract workers for a physically difficult job.

Now imagine that employer can obtain a workforce for substantially less because those employees are afraid to complain, dependent upon the company for visa sponsorship or unable to easily change employers.

The employer suddenly gains a tremendous competitive advantage.

A rival company paying lawful wages faces pressure to reduce costs.

American workers seeking $23 an hour are told they are asking too much.

The abused immigrant worker remains underpaid.

The American worker loses bargaining leverage.

The responsible employer gets punished for behaving responsibly.

And the abusive employer wins.

That is a poisoned labor market.

Immigrant exploitation therefore should not be understood as generosity toward immigrants versus protection for Americans.

Properly designed labor enforcement protects both.

The Department of Labor’s own H-2A rules are based on exactly this principle: hiring temporary foreign labor is not supposed to adversely affect the wages or working conditions of similarly employed U.S. workers.

Corporations Should Not Be Allowed to Use Immigration Status as Leverage

Congress should make one principle unmistakable:

A worker’s immigration status should never become an employer’s weapon for avoiding labor law.

An employer accused of wage theft should not be able to threaten an employee with immigration consequences.

A worker reporting unsafe conditions should not have to wonder whether the complaint will trigger retaliation involving immigration authorities.

NELP has specifically recommended state and local laws prohibiting immigration-related retaliation against workers exercising workplace rights.

That should become a strong national standard.

A company’s obligation to pay lawful wages should not fluctuate according to the citizenship of the person holding the shovel.

What Stronger Laws Should Look Like

The United States does not need a law saying corporations cannot hire immigrants.

That would be economically destructive, legally questionable and unfair to millions of lawful workers.

What America needs is legislation making the exploitation of immigrant labor brutally expensive.

A serious reform package should include:

• substantial mandatory damages for deliberate wage theft;
• personal liability for executives who knowingly organize systematic payroll fraud;
• automatic debarment from H-2A, H-2B and federal contracting programs after serious repeated violations;
• strict prohibitions against immigration-related retaliation;
• protection for workers who cooperate with labor investigations;
• transparent recruiting contracts in workers’ native languages;
• bans on illegal recruitment fees;
• stronger regulation of labor subcontractors and recruiters;
• joint liability when major corporations knowingly benefit from abusive subcontractors;
• stronger rights for workers to change employers when exploitation occurs;
• publicly searchable databases identifying repeat labor-law violators;
• criminal prosecution in extreme cases involving forced labor, trafficking or deliberate large-scale wage theft.

Those reforms would alter the economic calculation.

Right now, a corporation may look at a small fine and consider it another business expense.

The penalty for deliberately exploiting vulnerable labor should instead make executives think:

If we do this, the savings will be dwarfed by the consequences.

That is deterrence.

Corporations Should Not Be Able to Hide Behind Contractors

One of the oldest tricks in labor-intensive industries is distance.

A major corporation says it does not employ the workers.

A subcontractor does.

The subcontractor says a staffing agency handled recruitment.

The staffing agency points toward another intermediary.

Eventually everyone profits while responsibility evaporates into organizational fog.

Congress should pierce that fog.

When a company knowingly benefits from an abusive labor arrangement, merely inserting another corporation between itself and the worker should not provide immunity.

If companies can demand minute-by-minute productivity metrics from workers hundreds of miles away, they can certainly perform due diligence on whether those workers are being legally paid.

Corporate sophistication cannot be turned on when calculating profit and mysteriously switched off when accountability arrives.

Employers must compete more on productivity, technology, management and wages instead of vulnerability.

American workers benefit from that.

Immigrant workers benefit from that.

Responsible employers benefit from that.

The only people who lose are employers whose competitive strategy depends upon paying workers less than the law requires.

That is a perfectly acceptable group of losers.

Immigration Enforcement Without Employer Enforcement Is Incomplete

America frequently approaches unauthorized employment almost entirely through the worker.

Who crossed the border?

Who overstayed a visa?

Who lacks authorization?

Those questions matter under immigration law.

But there is another question that receives far less political attention:

Who profits from the labor?

If unauthorized employment is supposedly a national emergency, then companies deliberately constructing business models around unauthorized or vulnerable workers should face serious consequences too.

Punishing workers while allowing employers to keep the profits creates a bizarre incentive structure.

The supply of vulnerable labor exists partly because there is demand for it.

A coherent enforcement system must address both sides.

Stop Building Business Models Around Fear

Immigrants are not inherently cheap labor.

They become cheap labor when institutions allow employers to make them cheap.

That difference is crucial.

There is nothing about being born in Mexico, Guatemala, Honduras, India, Nigeria, Haiti or anywhere else that makes someone’s hour of labor naturally worth less.

The discount comes from power.

Fear creates the discount.

Limited mobility creates the discount.

Weak enforcement creates the discount.

Retaliation creates the discount.

And occasionally, corporate America collects the difference.

America should eliminate that discount.

Not because every corporation is abusive.

And not because immigration law should cease to exist.

The country should do it because no legitimate market should reward a business for finding the worker least capable of saying no.

An American economy worthy of calling itself free should force employers to compete for labor rather than compete over who can exploit vulnerability most efficiently.

That is not anti-business.

It is pro-market, pro-worker and fundamentally American.

—Barrington Williams, Michael Lyles, B1Daily