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Excerpted from: Shirley Lung, Criminalizing Work and Non-work: the Disciplining of Immigrant and African American Workers, 14 University of Massachusetts Law Review 290 (Spring, 2019) (318 Footnotes) (Full Document)

ShirleyLungThe realities of low-wage work in the United States challenge our basic notions of freedom and equality. Many low-wage workers toil excessive hours against their will for less than poverty wages in autocratic workplaces. Other low-wage workers barely cobble a living on part-time work as employers drive labor costs down by discarding full-time jobs. With weakened unions, the constant threat of outsourcing, and the ascendancy of a service economy built on low pay, the right to quit is more fiction than reality for many low-wage workers.

These alarming trends hit undocumented immigrant workers especially hard. The Supreme Court has sanctioned the unequal status of undocumented immigrant workers in two cases. According to some labor organizers and advocates, United States immigration laws have spawned modern-day slave labor.

In fact, “unfree” and “bound” labor in various forms, including slavery, has been a mainstay of the United States economy since the founding of this country. A look at history and law reveals criminalization as a mode of labor regulation and racial control that was central to the project of maintaining a class of unequal and unfree black workers after slavery. Post-Civil War, criminal laws proliferated to empower planters and other southern employers to restrict the mobility of newly freed black men and women who sought to reject “slavery's hours and slavery's pace.” This history of criminalization bears directly on the criminalization of African American communities today, resulting in the mass incarceration of black men and women, the use of cheap prison labor by corporations, and the freedom of private employers to discriminate against people who have criminal convictions.

Criminalization also lies at the crux of modern immigration laws regulating undocumented workers. Over three decades ago, Congress enacted the Immigration Reform and Control Act of 1986 (“IRCA”). It was the first time Congress made the private workplace a direct site of immigration regulation by banning the employment of undocumented workers. The “employer sanctions” provisions of IRCA prohibit employers from knowingly hiring or employing unauthorized workers. IRCA also requires employers to verify whether an employee is authorized to work through the “I-9” documentation process and to maintain certain kinds of paperwork. Employers who violate either the substantive or administrative provisions of IRCA are subject to civil and criminal penalties. IRCA does not, however, impose criminal sanctions on undocumented workers who seek, solicit, or engage in employment.

IRCA's employer sanctions regime is momentous not only as legislation promoting employer enforcement of immigration law. It is a potent instance of labor regulation bearing certain similarities to systems of criminalization invoked by employers to control black and poor white workers in earlier eras of United States history. Some commentators have begun to emphasize these shared characteristics, arguing that IRCA recalls or “perpetuates the shameful legacy of slavery in the U.S.” by handing over state enforcement powers to employers who wield such power to “terrorize [] workers and suppress worker dissent.” Labor organizers, unions, scholars, and lawyers publicize the “corrosive effects” of deputizing employers to enforce immigration laws in the workplace. Unscrupulous employers can take advantage of their enforcement powers by selectively applying the I-9 documentation process to terminate unauthorized workers who protest exploitation, thereby squelching collective efforts to improve working conditions.

Equally significant, and underscored by labor and immigration advocates, are the pernicious effects of IRCA on U.S.-born workers. Exploitation becomes universalized as employers use the criminalization of undocumented workers to systematically undermine the labor and employment rights of U.S.-born and other legalized workers in low-wage industries. When employers use IRCA as a union-busting tool to purge the workplace of immigrant workers who support an organizing drive, all workers at the workplace--regardless of their immigrant or citizen status--are weakened. When employers use their IRCA enforcement powers to intimidate undocumented workers into accepting sub-minimum wages and conditions, citizen and other legalized workers are also forced to compete in a race-to-the-bottom. Based on the racial and economic stratification of jobs, the U.S.-born workers most likely harmed by IRCA's employer sanctions provisions come from communities of color. Low-wage employment falls disproportionately on African Americans, Latinos, and Asians, who often labor beside undocumented immigrant coworkers.

The use of criminal sanctions to terrorize and repress workers, to control their wage demands and working conditions, and to attack their mobility has deep historical roots. This Article examines the similar attributes between the criminalization of work for undocumented immigrants under IRCA and the criminalization of non-work for black workers in the post-Civil War South. Specifically, this Article juxtaposes the two enforcement regimes and brings together two areas of literature to draw attention to intersecting features of criminalization, in which state power is used by private employers to discipline and control workers.

The Black Codes enacted by southern legislatures in 1865-1867 sought to comprehensively control and restrict freed black men and women in every aspect of life, especially as workers. Vagrancy laws forcing newly freed Blacks into working for exploitative wages under inhumane conditions were central to a system of criminalization aimed at preserving a captive workforce and abridging the political and social freedom of black people.

This Article argues that IRCA's employer sanctions and the post-Civil War vagrancy statutes reflect one another in important ways. First and foremost, embedded in the criminalization of work and non-work are efforts to undercut workers' autonomy, even when employers are ostensibly targeted. This lies at the heart of both labor contexts. The autonomy at stake is the freedom to challenge work conditions directly through organizing or indirectly by “voting with your feet” through seeking better work elsewhere. The criminalization of work and non-work become instruments of employer control in which state power is placed into private hands to suppress worker dissent, worker organizing, and worker radicalism. The price paid by workers is mobility, freedom, and autonomy.

Second, employers use the criminalization of targeted groups of workers to repress broader groups of workers. Criminalization provides the coercive apparatus by which employers pit workers against one another and keep all workers in their place.

Third, the enforcement of IRCA against undocumented workers and the enforcement of the post-Civil War vagrancy statutes against black workers have depended on criminalization narratives for their effectiveness. These narratives exploit racist stereotypes to incite fear and resentment, and to rationalize criminalization. The criminalization narratives used to justify post-Civil War vagrancy statutes survive in present-day form to stigmatize African American workers and to obfuscate the impact of structural racism on the employment opportunities of African American communities.

The criminalization of work for undocumented immigrants and of non-work for African Americans after the Civil War represent different experiences that cannot be conflated. The historical context of criminalization of non-work-- backed by systemic state and private violence--growing out of slavery has to be kept in mind. This

Article does not argue that the two systems of criminalization are identical, only that they share crucial features that illuminate how criminalization--i.e., state law enforcement power--is used to undermine equality, mobility, and freedom in specific labor contexts.

As well, workers under both systems of criminalization have not stood as passive victims. They have resisted by exercising agency and autonomy wherever possible and with great risk. Slavery “gave rise to numerous forms of black resistance.” After the Civil War, and even during post-Reconstruction, black workers “resist[ed] plantation discipline” through acts of labor militancy that included direct confrontation with employers, strikes, work stoppages, refusal to make contracts, and participation in evolving grassroots movements. Further, vagrancy and contract labor laws never succeeded in entirely cutting off black mobility.

Similarly, undocumented workers continue to organize and join unions and workers' centers despite IRCA and threats of detention and deportation. They have participated in groundbreaking organizing campaigns in the janitorial, drywall, home care, domestic work, and food processing industries. Their successes show that they can be on the “leading edge” in establishing new forms of organizing that challenge the traditional labor law regime. Some workers' centers seek to bridge the immigration divide by trying to unify undocumented immigrants as well as African American and Puerto Rican low-wage workers in community and workplace struggles.

This Article draws historical parallels between undocumented workers under IRCA and black workers under the post-Civil War statutes with the hope that this can help workers find new ways to understand one another's experiences. Perhaps these parallels can contribute to a sense of shared identity that workers can draw upon in surmounting the politics of racial division. The repeal of IRCA's employer sanctions provisions will require broad groups of workers to engage in the fight for repeal. Addressing the economic marginalization of certain African American communities will require broad groups of workers to engage in the fight against structural racism. Status differentiation through criminalizing targeted classes of workers not only splinters workers, but also sanctions coercion, inequality, immobility, and exploitation. Viewing IRCA against the criminal laws that regulated black workers after slavery highlights shared characteristics between these enforcement regimes and will point to the alliances that must be forged between immigrant and citizen communities to defeat laws that hurt the interests of low-wage workers.

Part I of this Article examines the employer sanctions provisions of IRCA as a system of criminalization invoked by employers to discipline undocumented and citizen low-wage workers.

Part II discusses post-Civil War criminal laws that regulated vagrancy, prohibited employers from recruiting another employer's workforce, and barred the interstate recruitment of black workers.

Part III explores the similarities between IRCA and post-Civil War criminal laws in legalizing inequality and exploitation. This Article concludes by reflecting on the need for alliances between undocumented immigrants and African American communities that each have experienced their own history of criminalization in a work context. These alliances are needed to repeal IRCA's employer sanctions, to pursue common interests in other struggles both inside and outside the workplace, and to undo systems of criminalization that advance exploitation and oppression.

[. . .]

Despite strong evidence that IRCA's employer sanctions have had a disastrous effect on low-wage workers and labor standards, repeal of employer sanctions does not figure into immigration reform debates. Proposals from both parties in Congress typically seek to enhance the I-9 system of documentation rather than dismantle it. The question faced by civil rights and immigrants' rights communities, workers' centers, trade unions, and other labor organizations is: what kind of worldview or framework is necessary for achieving the long-term goal of repealing employer sanctions? So long as IRCA is addressed only as immigration policy, the prospects for repeal will remain nonexistent because the attendant discourse reduces to divisive narratives of “insiders” and “outsiders” competing for jobs. The resultant discussion fuels antagonism and fans tensions between African Americans and immigrant communities.

We thus need worker, community, legal, and media education projects that provide disenfranchised communities with new ways of understanding one another and can help build strategic alliances. This Article has attempted to examine IRCA through the prism of criminalization, and to juxtapose the modern day treatment of undocumented immigrant workers to the criminalization of black workers after the Civil War. Undeniably, these two experiences are distinct, not identical, and it would be inaccurate to equate them. Yet new insights into shared histories of criminalization can help mend rifts between oppressed and exploited communities of color by breaking down misperceptions of one another. The parallels between criminalization of work and non-work point toward a deeper shared identity between African Americans and undocumented immigrants. This common experience shows that criminalization has been used not only to perpetuate economic injustice, but also--more systemically--to undermine equality, mobility, and control. As a result, both communities share a highly fraught relationship to freedom and coercion. Perhaps this history and framework can contribute to a broadened worldview in which the self-interests of African Americans and low-wage immigrants of color not only intersect but converge to go beyond short-term pragmatic cooperation.

Hoffman affirmed the criminalization of undocumented workers in denying them the right to back pay under the NLRA, thereby invigorating narratives and legal interventions that splinter workers. In contrast, the D.C. Circuit in Agri Processor Company v. N.L.R.B. engaged in an alternative legal discourse that promotes unity between workers when it affirmed a “community of interests” between undocumented workers and co-workers who were citizens or legalized workers. Agri Processor, the employer, challenged the results of a union election, claiming both that undocumented workers were not covered under the NLRA, and could not be included in the same bargaining unit with legal workers because they lacked a community of interest. In essence, Agri Processor tried to use immigration status to drive a legal wedge between workers who had successfully unified.

The D.C. Circuit rejected both arguments, and in addressing “community of interest,” found that Agri Processor “failed to show that the interests of undocumented workers as employees differ[ed] in any way from those of legal workers.” Agri Processor had argued that since the undocumented workers had no legitimate expectation of continued employment, they shared no community of interests with the authorized workers. The D.C. Circuit denied this attempt to divide workers, instead finding that undocumented workers and legal workers in the bargaining unit were “identical” when the undocumented workers “receive the same wages and benefits as legal workers, face the same working conditions, answer to the same supervisors, and possess the same skills and duties.”

By stressing “sameness,” Agri Processor took an important step toward a narrative in which the relationship between undocumented workers and citizens and other legalized workers is one of mutuality arising from a common plight and common interests. Its conception of “community of interest” supported the ability, willingness, and struggle of workers to identify with one another across the divide of citizenship and immigration status.

There is strong work carried on by workers, labor organizers, activists, and scholars that--like Agri Processor--counter the narratives of criminalization and division that IRCA's employer sanctions and Hoffman represent. A few examples from the author's experience include the work of the National Mobilization Against Sweatshops (“NMASS”) and the Coalition to Protect Chinatown and the LES. NMASS, an independent workers' center in New York City, spearheads a campaign to bring together homecare workers from across the city. Comprised of Chinese, Caribbean, Puerto Rican, and African American women, NMASS organizes against mandatory unpaid overtime in the industry. Similarly, the Coalition to Protect Chinatown and the LES unites low-income residents from New York's lower east side--Chinese immigrants and working-class African Americans, Puerto Ricans, and whites--to challenge municipal rezoning policies that promote gentrification and displacement. In both areas of work, those who are most affected come to recognize over time through engagement, discussion, community education, and joint action that--regardless of race, ethnicity, culture, or immigration status--their respective self-interests can merge into common ground and shared identity.

Scholars, journalists, and activists are also critical to this work. These efforts include the scholarship of Professors Jennifer Gordon and R.A. Lenhardt in untangling the complex interactions between African Americans and new Latino immigrant low-wage workers for a more nuanced understanding of the conflict between them and to better identify how these groups can unify. Likewise, the research of Professors Angela Stuesse and Laura Helton in tracing the history of African Americans and Latino immigrants in Mississippi's poultry processing industry shows how “different points of entry into US systems of racial inequality and low-wage work” lead African American and Latino poultry workers to arrive at different interpretations of workplace abuses. Understanding the “historical, structural, and personal rationale for these differences,” rather than erasing them, they believe, can help forge collaboration.

As well, African American journalists and activists urge African American communities against the dangers of immigrant scapegoating. Some also criticize organized labor for abdicating its responsibility to construct alliances between immigrants and African Americans by addressing the needs of the black working class alongside organizing Latino and Asian immigrants. Other labor commentators seek to publicize worker struggles in which African American, white, and Mexican slaughterhouse workers in the South organized together despite the use of racial division and immigration enforcement against them.

This Article is a small piece of a larger effort to construct frameworks and narratives that support immigrants and citizens to come together to advance one another's rights--not just as a means for protecting citizens and other legalized workers as a necessity based on mutuality arising from shared conditions and shared interests. This Article offers a historical perspective to help deepen a sense of shared identity between undocumented immigrants and African Americans. For it is relationships of shared identity-- rather than ones of pragmatism or even of solidarity--that hold the most promise for building alliances to take apart systems of criminalization. 

Professor of Law, City University of New York School of Law.