Unionization Can End America’s Supply Chain Crisis

Over the past two months, business leaders and their political allies have returned to an old refrain: “Where are the workers?” With bottlenecks wreaking havoc on the global supply chain, fresh claims of a nationwide labor shortage have given way to familiar questions about U.S. immigration policy. In October, the CEO of Domino’s Pizza told CNBC’s Jim Cramer that a decline in net immigration is hurting the restaurant industry. “We literally have to start thinking about an immigration policy that involves taking in people,” Cramer added. Days earlier, on Oct. 12, the Biden administration announced an end to immigration raids in workplaces, signaling, as the New York Times wrote, “that undocumented workers are not at risk of being deported en masse.” On Nov. 23, the newspaper reported that the U.S. Chamber of Commerce is now urging a complete “overhaul” of the U.S. immigration system “to allow more work visas and green cards.”

If policymakers want to make the United States a better destination for low-wage immigrant workers, they might revisit a piece of legislation enacted 35 years ago this month. The 1986 Immigration Reform and Control Act (IRCA) was the last major reconfiguration of the legal framework that looms over recent conversations about immigration and labor.

Though it is best remembered for creating a path to legal status for some 3 million people living in the United States, the legislation also included provisions to make America a more hostile place for undocumented workers, largely in response to nativist and protectionist demands. It earmarked millions of dollars for policing the country’s borders and made it a felony for undocumented people to work in the United States. Proponents of this approach described it as keeping the “front door” open to legal immigration while “closing the back door” to undocumented immigrants.

Over the past two months, business leaders and their political allies have returned to an old refrain: “Where are the workers?” With bottlenecks wreaking havoc on the global supply chain, fresh claims of a nationwide labor shortage have given way to familiar questions about U.S. immigration policy. In October, the CEO of Domino’s Pizza told CNBC’s Jim Cramer that a decline in net immigration is hurting the restaurant industry. “We literally have to start thinking about an immigration policy that involves taking in people,” Cramer added. Days earlier, on Oct. 12, the Biden administration announced an end to immigration raids in workplaces, signaling, as the New York Times wrote, “that undocumented workers are not at risk of being deported en masse.” On Nov. 23, the newspaper reported that the U.S. Chamber of Commerce is now urging a complete “overhaul” of the U.S. immigration system “to allow more work visas and green cards.”

If policymakers want to make the United States a better destination for low-wage immigrant workers, they might revisit a piece of legislation enacted 35 years ago this month. The 1986 Immigration Reform and Control Act (IRCA) was the last major reconfiguration of the legal framework that looms over recent conversations about immigration and labor.

Though it is best remembered for creating a path to legal status for some 3 million people living in the United States, the legislation also included provisions to make America a more hostile place for undocumented workers, largely in response to nativist and protectionist demands. It earmarked millions of dollars for policing the country’s borders and made it a felony for undocumented people to work in the United States. Proponents of this approach described it as keeping the “front door” open to legal immigration while “closing the back door” to undocumented immigrants.

In the end, IRCA proved ineffective at deterring labor migration, perhaps because it hinged on a false choice: promote economic growth by permitting immigration or protect so-called American workers by restricting it. Current debates remain mired in this flawed logic.

There is another approach to U.S. immigration policy, one that treats workers as more than abstract economic inputs. It is a path that grassroots organizers have been promoting for decades—and it ensures that all workers, regardless of citizenship or immigration status, can fight for a better economy. The lessons of this history have never been more vital as the push to pass the Protecting the Right to Organize Act, or PRO Act, in the U.S. Senate continues. The bill—opposed by the very business groups currently clamoring for immigrant labor—would begin to reverse the decades-long assault on labor organizing that has taken place in the name of combating unauthorized immigration.

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That did not stop U.S. employers from continuing to seek foreign workers for low-paid, back-breaking jobs that many derided as “Mexican work.” Taking those jobs, however, increasingly meant crossing a militarized border and living under threat of deportation.

As the undocumented population increased in the 1970s and 1980s, many questioned whether the stagnant U.S. economy could absorb so many new workers. After multiple attempts to pass an employer sanctions bill, Congress at last passed IRCA in 1986. President Ronald Reagan signed it into law.

Though IRCA put many undocumented workers on a path to legal status, the new law had a different impact for immigrants who had arrived after the Jan. 1, 1982, amnesty deadline and those who could not prove continuous residence prior to 1986. These provisions rendered a majority of Central American immigrants ineligible for amnesty at the time.

Though it was a crime to enter the United States without authorization before 1986, immigration authorities often had trouble proving someone had done so without a direct admission of guilt. It was far easier to show that someone had forged an identity document to apply for a job, and IRCA made doing so a crime.

Rather than protecting U.S.-born workers from competition, IRCA gave employers more leverage in the ongoing suppression of wages and erosion of labor conditions. On its face, the law appeared to target bosses as much as their employees. In practice, it shields employers from negative consequences. Under IRCA, employers who “knowingly” hire workers without the proper employment authorization could face fines up to $1,000 per violation, but it is hard for the government to prove employers intended to break the law.

Nor has the government made it a priority to punish those employers it does find guilty. Federal prosecutors routinely decline to seek criminal charges against businesses, and even when there are convictions, the results are often no more than “token punishment,” according to researchers at Syracuse University. Both employers and their undocumented employees break the law, yet only workers are viewed as “illegal,” and only workers face deportation and family separation.

It is no surprise, then, that employer sanctions have failed to improve wages or working conditions since IRCA went into effect. Adjusting for inflation, wages for U.S. workers have stagnated since 1979. At least one report on the New York City metropolitan area found that undocumented workers actually faced worse conditions after IRCA. Relative impunity for employers encouraged further deterioration of workplace rights, and immigration service providers were flooded with complaints of low pay and sweatshop conditions. The criminalization of their labor made these workers more fearful and isolated, and less likely to protest or unionize.

Even so, immigrants did not abandon the labor market. The dual threats of termination and deportation forced undocumented workers underground, trapping them in “unstable dead-end jobs” with worse pay and conditions and little recourse, according to a 1989 report from the New York Center for Immigrants Rights. Labor migration did not drive a race to the bottom; employer-friendly enforcement policies did.

In the 35 years since IRCA’s passage, its enforcement provisions have combined with subsequent measures of exclusion to push more and more immigrant workers to the margins of economic life. The fix is not to make it riskier for immigrants to work, as IRCA did, or temporarily easier to migrate, as employers are calling for. Instead, policymakers should support the ability of workers to build collective power by organizing across the boundaries of citizenship.

Employers readily leverage the power of federal enforcement agencies to suppress labor activism. On a single day in 1978, the Immigration and Naturalization Service apprehended 119 workers at a Los Angeles shoe factory after the boss caught wind of a union organizing drive. More recently, a 2002 decision by the U.S. Supreme Court enabled companies to retaliate against undocumented workers even though they are entitled to protection under the National Labor Relations Act.

IRCA represented an escalation in a long history of policies constructed to furnish the economy with disempowered and deportable workers. But it also galvanized a movement of labor and immigrant rights activists, especially in cities where foreign-born residents constituted a large share of the workforce. Chicano activist Frank del Olmo wrote a 1981 column for the Los Angeles Times with a headline that offered a way out of this conceptual trap: “An Idea for Illegal Immigrants—Let Them Join Unions.”

In fact, many undocumented workers were doing just that. In Los Angeles and other gateway cities, inclusive unions proved key to raising wages and building political power for all. Where unions organized immigrants, they learned that they did not have to base conclusions about the effects of immigration on economic theories about the wage market. They saw firsthand that employers could only maintain low wages and poor conditions if a critical mass of employees faced a credible threat of deportation.

Two industries help illustrate this point. In the 1970s and 1980s, furniture-makers and janitorial companies were among the employers that switched from paying U.S.-born workers a decent wage to almost exclusively hiring low-paid immigrants, many of them undocumented. In California, the state’s furniture industry organized in undocumented workers’ private homes, away from the prying eyes of employers. Only once every person had committed to the union would they confront the boss—together. If an employer tried to retaliate by tipping off authorities, it would mean shutting down production and losing their entire workforce.

The same lesson can be drawn from the successful Justice for Janitors campaign in Los Angeles. Beginning in the late 1970s, custodial companies entered a competitive race to the bottom to lower labor costs. Janitorial work once offered a decent career for Black men especially, but subcontracting and union busting transformed it into a precarious job done by newcomers from Mexico and Central America. That is, until a successful union organizing drive won workers in some jurisdictions benefits and as much as doubled their wages.

Today, naturalized citizens are more likely to belong to a union than U.S.-born workers, and the percentage of unionized immigrants has grown while overall membership is in decline. Unions in this country counted some 2 million foreign-born workers as members as of 2010. “American labor,” the activist Cristina Jiménez Moreta and late labor leader Héctor Figueroa wrote in 2018, “has always been a movement in which immigrants, often in the most thankless and dangerous jobs, have played leading roles—often stopping the race to the bottom that employers entered them in.”

Thirty-five years on, the U.S. Congress has an opportunity to do what IRCA failed to do: protect both workers and the economy. The PRO Act—which the House of Representatives passed in March—enjoys support from 59 percent of likely voters and would give teeth to federal enforcement of immigrant labor rights. Among other protections, the bill would establish penalties against employers who illegally fire or retaliate against workers, regardless of their immigration status. It would effectively reverse the Supreme Court’s 2002 decision limiting the government’s ability to uphold immigrant workers’ right to organize.

No organization has spoken more forcefully on the need to pass the bill than the AFL-CIO, whose nativist lobbying helped pass IRCA in 1986. The repeal of that law may not be on the horizon, but passing the PRO Act would be a decisive step toward creating an economy that works for all workers.