https://www.epi.org/blog/by-banning-mandatory-arbitration-clauses-and-class-and-collective-action-waivers-congress-could-restore-a-fundamental-workers-right/
-- via my feedly newsfeed
In recent weeks, President Trump has been warning of an "invasion" of a caravan of 3,000 Central Americans, mostly from Honduras, heading north towards the Mexico-U.S. border. In October, these immigrants set out on a journey of more than 2500 miles to seek asylum in the United States, fleeing violence, corruption, and poverty in their home countries. In response to thousands of families, including babies and elders, our government has deployed more than 5000 soldiers to the border in anticipation of their arrival.
All this attention on the border means that many have forgotten what is happening to immigrants who are already here, including more than 320,000 people who are threatened by the ending of Temporary Protected Status(TPS). Congress created TPS as part of the Immigration Act of 1990 to provide temporary immigration relief for members of countries facing ongoing armed conflict, natural disasters, or other extraordinary and temporary conditions. TPS allows beneficiaries to receive temporary relief from deportation, an Employment Authorization Document, and the possibility to travel abroad. TPS applies to people from 10 countries, including El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. Nearly three decades later, many TPS recipients have been living in the United States for many years, but they still do not have a pathway to legal permanent resident status. Some TPS recipients, like those from El Salvador, have been renewing their status for more than 15 years.
TPS recipients are not just immigrants, they are also an important part of the U.S. workforce. The Center for Migration Studies reports that 81% to 88% of TPS recipients are working, predominately in construction, restaurants and other food industries, landscaping services, child day care services, and grocery stores. They are part of the American working class and an essential part of many local communities. Despite their economic contributions, Congress has not take any action to extend TPS or to provide recipients the opportunity to become permanent residents or citizen.
For the Trump administration, the solution is to end the TPS for citizens from the Caribbean and Central American countries that have suffered natural disasters or state sponsored terrorism. In May 2018, Homeland Security Secretary Kirstjen Nielsen determined that the impact of natural disasters or political violence had lessened enough in some countries to warrant the suspension of TPS for their citizens. About 2500 Nicaraguans and 45,000 Haitians were ordered to leave by January and July 2019 respectively. In January 2018, the Trump administration cancelled protection for 200,000 Salvadorans, notifying them to depart by September 2019.
But some TPS recipients are facing deportation even sooner. For immigrants from Sudan, TPS was originally set to end November 2, but a court ruling focused on whether the end of TPS reflects racial bias on the part of the Trump administration ordered the program to remain in place for TPS recipients of Sudan, El Salvador, Haiti and Nicaragua until April 2, 2019. Once that extension expires, the President will have the authority to terminate TPS based on the arbitrary recommendation of the State Department. If Trump continues to insist on ending TPS, hundreds of thousands of people will be required to return to countries they left years ago or face deportation.
Ending TPS will not only affect these immigrants, it will also have a devastating impact on the U.S. Most TPS recipients have been in the U.S. for many years. They have learned English, paid taxes, bought homes, made a life here. According to a report from the Center for American Progress, "A recent survey of Salvadoran and Honduran TPS holders demonstrates that they are active community members, with 29.7 percent of respondents reporting participation in a variety of organizations, including neighborhood and work associations, schools, and sports teams."
Here in DC, we have an especially large community of TPS recipients from El Salvador – about 32,000 people. According to the Executive Director of the Central American Resource Center, Abel Nunez, about 20% of construction workers in this city have TPS. This means that many projects within the city would come to a halt if they were to lose their status and thus the work permits allowing them to work legally. Along with construction workers, D.C. would lose many of its restaurant and other food industry workers, landscapers, nannies, and employees at grocery stores. While Trump touts his anti-immigration stance as defending American jobs, ending TPS would cripple the U.S. economy by deporting workers who provide some of our most basic necessities.
Ending TPS would also further destabilize Central America as countries would face an influx of 195,000 Salvadorians and 57,000 Hondurans. These countries do not have the infrastructure to provide employment to so many returnees. According to the Inter-American Dialogue report, Central America Migration: Current Changes and Development Implications, 70% of the labor force in El Salvador and 80% in Honduras are part of the informal economy. These economies also depend on remittances – money sent to family members in Central America from TPS recipients in the U.S. According to the report, "Remittances alone amounted to $17 billion in 2015 and represented over 50% of household income in some 3.5 million households in the region." Ending TPS will devastate Central American economies, which would in turn spur further migration out of these countries – including more people trying to enter the U.S. to find employment. If we want to stabilize Central America and reduce illegal immigration to the U.S., Congress should propose a bill that would grant a pathway for TPS recipients to remain in the country permanently.
Proposing such a bill would let Democrats show that they really stand behind immigrants. As Democrats prepare to take control of the House, I hope they will include plans to provide permanent protection for TPS Recipients on their agenda. Winning protection for TPS recipients will also create an opportunity for the immigrant rights community to advocate for other working families and make clear how immigrant workers contribute not only to the economy but also to American communities. To make this happen, we all need to get informed, to support organizations that focus on TPS, and finally make sure that Democrats in Congress don't get distracted from TPS by the Republican anti-immigrant fear campaign.
Juan L. Belman Guerrero
Juan L. Belman Guerrero is a DACA recipient who is the Program Manager at the Kalmanovitz Initiative for Labor and the Working Poor at Georgetown University. He has organized in Austin, Texas with the University Leadership Initiative and is originally from Juventino Rosas, Guanajuato, Mexico.
Writing for PS since 2005
114 Commentaries
Daniel Gros is Director of the Brussels-based Center for European Policy Studies. He has worked for the International Monetary Fund, and served as an economic adviser to the European Commission, the European Parliament, and the French prime minister and finance minister. He is the editor of Economie Internationale and International Finance.
Organizing a union is no easy task in the United States. Although organizing a union is supposed to be a protected right, businesses regularly fire union supporters knowing that they face minimal punishment even if found guilty for their actions. In fact, the rights of all workers, regardless of their interest in unionization, are being whittled down. Simply put, US law doesn't work for workers.
Moshe Z. Marvit, writing in the newspaper In These Times, provides a recent example of the ongoing legal attack on union rights, in this case those of unionized janitors. As he explains, the National Labor Relations Board, using a provision of the 1947 Taft-Hartley Act designed to weaken labor solidarity:
ruled [in October 2018] that janitors in San Francisco violated the law when they picketed in front of their workplace to win higher wages, better working conditions and freedom from sexual harassment in their workplace.
The provision in question is one that prohibits workers from engaging in actions against a so-called "secondary" employer. The provision makes it illegal for workers to organize boycotts or pickets directed against an employer with which the union does not have a dispute in order to get that firm to pressure the union's employer to settle its dispute with the union.
The NLRB's ruling dramatically stretches the meaning of this provision, in that the San Francisco janitors were actually engaged in workplace actions against an employer that had significant influence over their terms of employment. However, Board members were able to justify their ruling thanks to the complexities generated by the increasingly common corporate strategy of subcontracting.
In this case, the janitors were employed by Ortiz Janitorial Services, which was in turn subcontracted by Preferred Building Services, to work in the building of yet a third company. An administrative law judge had previously ruled that Preferred Building Services had meaninful control over the employment terms of the janitors hired by Ortiz Janitorial Services.
More specifically, the judge found "that Preferred Building Services was involved in the hiring, firing, disciplining, supervision, direction of work, and other terms and conditions of the janitors' employment with Ortiz Janitorial Services." That made Ortiz and Preferred joint employers of the janitors, and the worker's actions legal. Undeterred, the NLRB simply rejected the administrative law judge's ruling, declaring instead that the janitors worked only for Ortiz which made the worker's actions, which were also aimed at Preferred, illegal.
As Marvit summarizes:
The NLRB's recent case restricting the picketing rights of subcontractors, temps and other workers who do not have a single direct employment relationship is a further sign that the labor board will continue limiting its joint employer doctrine. This will make it more difficult or even impossible for many workers to have any meaningful voice in the workplace. But the case also highlights some of the core problems of labor law as it currently exists. By being included under the NLRA, workers lose basic rights that all other Americans enjoy.
Given how important the use of subcontracted labor has become, it should surprise no one that Trump's appointees to the National Labor Relations Board are actively working to tighten the standard under which workers can claim to face, and organize against, a joint employer.
But the attack on worker rights is not limited to efforts to weaken union power. The Supreme Court, in a 5-4 vote in May, ruled in Epic Systems Corp v. Lewis, that employers can include a clause in their employment contract requiring nonunion workers to arbitrate their disputes individually, a ruling that eliminates the ability of workers to sue a company for workplace violations or use collective actions such as class action suits. The ruling resolved three separate cases–Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA–that were argued together in front of the Court on the same day because they all raised the same basic issue.
Marvit explains what led to Lewis's decision to sue Epic Systems:
On April 2, 2014, Jacob Lewis, who was a technical writer for Epic Systems, received an email from his employer with a document titled "Mutual Arbitration Agreement Regarding Wages and Hours." The document stated that the employee and the employer waive their rights to go to court and instead agreed to take all wage and hour claims to arbitration. Furthermore, unlike in court, the employee agreed that any arbitration would be one-on-one. This "agreement" did not provide any opportunity to negotiate, and it had no place to sign or refuse to sign. Instead, it stated, "I understand that if I continue to work at Epic, I will be deemed to have accepted this Agreement." The workers had two choices: immediately quit or accept the agreement. . . .
When Lewis tried to take Epic Systems to court for misclassifying him and his fellow workers as independent contractors and depriving them of overtime pay, he realized that by opening the email and continuing to work, he waved his right to bring a collective action or go to court.
As the Court saw it, the case pitted the Federal Arbitration Act against the National Labor Relations Act. The former established a legal foundation for using one-on-one arbitration to settle disputes while the latter gives workers the right to work together for "mutual aid and protection." The Court's ruling priviledged arbitration.
Jane McAlevey, writing before the Supreme Court combined the cases and decided Epic Systems Corp v. Lewis, highlights the likely anti-worker consequences of the Court's decision:
As for loud liberal voices — union and nonunion — that declare unions as a thing of the past, the forthcoming SCOTUS ruling on NLRB v Murphy Oil will prove most of the nonunion "innovations" moot. Murphy Oil is a complicated legal case that boils down to removing what are called the Section 7 protections under the National Labor Relations Act, and preventing class action lawsuits.
Murphy Oil blows a hole through the legal safeguards that non-union workers have enjoyed for decades, eviscerating much of the tactical repertoire of so-called Alt Labor, such as class-action wage-theft cases, and workers participating in protests called by nonunion community groups in front of their workplaces. The timing is horrific and uncanny: As women are finally finding their voices about sexual harassment at work, mostly in nonunion workplaces (as the majority are), Murphy Oil will prevent class action sexual harassment lawsuits.
The Epic Systems decision is a big deal, since there is a growing and already sizeable use of mandatory arbitration by employers. A study by the Economic Policy Institute found that:
The Court's decision means that workers without unions will have little power. The NLRB's decision weakens the laws that are supposed to protect union rights. The only effective response to this trend is, as the recent wave of teacher strikes demonstrated, militant, rank and file-led union organizing, with strong community involvement and support. Hopefully, exposing the class-biased nature of US laws may help encourage this kind of activism.
Dean Baker
Truthout, November 6, 2018
I have followed politics closely since 1968. I have seen many unpleasant political figures. I have also seen many clear dog whistles to racists, with the racism lurking just below the surface.
When Richard Nixon talked about being tough on crime, everyone knew the race of the criminals whose specter he was invoking. The same was true of Ronald Reagan with his racist stories about young Black men buying steaks with food stamps. And when George H.W. Bush ran an ad featuring Willie Horton, a convicted murderer, no one thought he was talking about prison reform.
But, these politicians felt a need to at least put a thin veneer over their appeals to racism. That is not the case with Donald Trump and today's Republicans. The racism is there for all to see, mixed in with a huge helping of anti-Semitism.
Blatant racism and anti-Semitism is on display as the election approaches with Donald Trump hyperventilating about the prospect that a few thousand people from Central America may seek asylum in the United States. But there is a long list of actions and words that tie Donald Trump and the Republican Party to racists and anti-Semites.
The list begins with Trump's efforts to ban Muslim immigrants in the first days of his administration. It includes failing to mention Jews as victims of the Holocaust. Trump also couldn't bring himself to condemn the Nazis who marched in Charlottesville, chanting "Jews will not replace us."
Trump openly encourages his audience with chants of "lock him up" in reference to George Soros, whose major "crime" is being a progressive Jew. In the last weeks the president has made up ever more absurd claims about the risks posed by a group of people (the so-called "caravan") that is coming up from Central America through Mexico and intends to seek asylum at the border.
I realize from my Twitter feed that alarmism is spreading about what it would mean for the US to absorb the asylum seekers from the caravan. A few numbers may help counter that alarmism.
I have seen all sorts of estimates of the size of this group, but let's say it is 5,000 people. That's more than any estimate I have seen. Based on past precedent, the vast majority of these people will be denied asylum, but let's say that the impossible happens and all 5,000 get asylum.
We are a country of 330 million people. Five thousand people getting asylum amounts to less than 0.002 percent of the US population. To put that in a slightly different perspective, if you had $10,000 in the bank, the asylum seekers, relative to the US population, it would be less than 16 cents out of your bank account. And, these people are excluded from most government benefits, so there is no credible story about taxes being changed in any noticeable way.
In short, the only issue here is racism. Trump and the Republicans are saying, "Don't worry about your wages, your family's access to health care, your kids' ability to go to college, we are going to keep white people safe from people emigrating from Central America."
And it's not just that Trump and the Republicans are not offering help to working people, they have made it very clear they want to make things worse. Their health care plan is all about removing the Affordable Care Act's protections for people with health issues like cancer or heart disease.
They also have made it very clear that they want to cut Social Security and Medicare. Senate Majority Leader Mitch McConnell said this explicitly last month when he argued that the large budget deficits caused by the GOP tax cut will make it necessary to cut Social Security and Medicare.
Of course, the vast majority of the benefits from the tax cut went to the rich. So, this is yet another part of the upward redistribution story we have been seeing for the last four decades.
Trump and the Republicans are trying to present themselves as a populist party, but they offer nothing but racism and bigotry to ordinary workers. This is a sharp contrast with right-wing populists in other countries whose parties combine xenophobic and racist appeals with platforms supporting public benefits like Social Security and Medicare.
In countries where right-wing populists have come to power, like Hungary, they have pursued policies that led to large gains in living standards for white workers at the middle and bottom of the income distribution, even while stoking sentiments that have increased discrimination and violence toward workers of color.
By contrast, Trump and the Republicans are looking to reduce the meager benefits that ordinary workers now have. (Our Social Security system is stingy by international standards, and the US stands out as the only wealthy country without national health care insurance.)
So, Trump really has nothing to offer to his working-class supporters in terms of improving their standard of living. All he can tell them is that Jews will not replace them.