Alexander Acosta seems well on his way to confirmation as secretary of labor, with a Senate vote likely to occur in the coming weeks. Although he’s less cartoonishly ill-suited for the position than many of Trump’s cabinet picks, it’s nearly inconceivable that Acosta will emerge as a strong advocate for working people, given his history and confirmation hearing testimony. He showed little discomfort with Trump’s pro-business, antiregulatory agenda, dodged a number of key questions, and stated, “We all work for the president and we all will ultimately follow his direction.”
Frances Perkins, he’s not.
With flaccid and ineffectual enforcement at the federal level, it will fall increasingly to state and city agencies to be the primary enforcers of the labor laws. Filling the federal vacuum will be difficult enough, but the Trump administration has not merely exited the stage. Instead, Trump’s actions in what may seem to be another arena—specifically, his attacks on immigrants—have made it infinitely harder for states and localities to protect workers’ rights.
I’ve spent many years in state labor-law enforcement, and frankly, it’s always a challenge to get workers to talk to the government. I started in 1999 on a street corner uptown late at night; in a midtown McDonald’s before dawn; huddled under a Queens elevated subway long after dark, meeting with workers wherever I could, just before or after their 12-hour shifts. I was what we called a “baby lawyer” at the New York State Attorney General’s Office, investigating grossly subminimum wages paid by greengrocers to their mostly Mexican workers. I’ll avoid misty heroic clichés about the hope in the workers’ eyes or their weather-beaten hands, and just say that uniformly, they were tired.
I pinballed all over the city to build my case. I had to: Workers were scared to report violations. This is true of all employees: Even handsomely paid professionals and managers don’t want to risk losing their jobs by complaining. But low-wage workers with limited job-market skills face additional hurdles. Many don’t know their rights or where to seek help, and they work long shifts that often fall outside of the hours when government offices are open. And immigrant workers, who represent 17 percent of the nation’s workforce, are even more vulnerable. A 2009 study of labor-law violations found that foreign-born workers experienced minimum-wage violations nearly twice as often as their US-born counterparts. Immigrants may also face language barriers when seeking help, and undocumented workers, probably the most vulnerable and exploited in the country, often fear that filing a labor complaint could lead to contact with Immigration and Customs Enforcement and ultimately deportation.
Over the years, finding witnesses for our cases became less difficult, as we developed relationships with community organizations, unions, and other local groups that bridged the gap between our government offices and the people we were trying to reach.
But it was still never easy. Our investigators would enter a restaurant kitchen and workers would fly through the back door. During an inspection of an upstate construction site with a Polish workforce, one of our top officials, a church deacon in his off-hours, sprinted down a hill after fleeing workers, calling out in fluent Polish, “We’re not immigration! We’re here to help!”
To stop illegality, law-enforcement agencies need to know of the existence of a possible infraction and they need evidence. This is true in civil and criminal cases, and it is true regardless of whether the case involves violence, fraud, discrimination, theft, or labor abuses. Enforcement agencies need people to talk with them: to report violations of the law and to provide testimony.
That is why we built relationships with community groups on the ground, and why we translated our materials into many different languages. And that is why we never asked about workers’ immigration status: If we had, many of the most exploited workers would not have said a word.
Enter Donald Trump, with his hateful rhetoric, his cruel and misguided executive orders, and the seemingly random yet rabid raids and deportations his words have unleashed.
These actions are driving immigrants into the shadows, and not only undocumented people. Many neighborhoods, workplaces, and families contain a mix of documented and undocumented immigrants, so even someone with papers may be nervous about calling authorities, out of concern for the possible implications for neighbors, colleagues, or loved ones.
There is unprecedented fear among immigrants nationwide: reports of domestic-violence victims afraid to call the police; parents keeping their kids home from school; a mother hiding out indefinitely in a church.
How can anyone in government effectively enforce any law—not just labor laws—under these circumstances?
The president claims to be protecting American workers, but his actions will do the opposite.
Unscrupulous employers will underpay, endanger, and exploit immigrant workers who are afraid to report violations.
Even if you don’t care about these workers as fellow human beings, this situation is also bad for other workers. If undocumented workers don’t feel comfortable speaking up, it creates an incentive for disreputable employers to hire and underpay them, skewing the job market and creating downward pressure on wages generally.
This is damaging to law-abiding employers, who have to compete with the bottom-feeders who save a buck by breaking the law.
It’s bad for the public coffers, too. Employers who don’t pay minimum and overtime wages often break other laws: They underreport workers to the government for tax purposes, or to their workers’-compensation carriers to avoid paying higher premiums. Letting them off the hook for abusing their workers closes the door to detecting other crimes.
And if workers are afraid to speak up, it’s bad for everyone. Remember the salmonella outbreak at the Peanut Corporation of America in 2008 and 2009, which led to hundreds of illnesses and possibly several deaths? Workers there were told not to answer questions of food-safety inspectors. When workers are silenced, bad things happen, and not just in the workplace.
What’s the solution? There are no easy answers. Agencies can find creative ways to identify targets using data, and to gather some evidence, but in the end, you can’t really build labor cases without workers’ voices. States and cities are going to have to play a leading role, and to be even more strategic and creative. They must be unremittingly fierce in protecting their witnesses. They will also need to collaborate with allies and community groups like never before, in the hopes that some brave few will still be willing to speak up, for themselves, and for all of us.