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How Trump Made Wage Theft Routine

Enrique is a farmworker in California. He has a wife and two sons living in Mexico who depend on the money he sends them. For parts of the year—from May to November—he goes north to Washington to pick apples and cherries. Sometimes, he says, he isn’t paid for all the work he does. On one such occasion, he and his coworkers wanted to complain. Stiffing employees, after all, is a federal crime.

But it’s not so simple. Enrique is worried that reporting the crime could backfire against him by exposing his immigration status.

“When we get paid—sometimes we get paid and sometimes we don’t—we notice that there are hours missing, and we just fear saying anything, because we’ve been told repeatedly that if we say anything, they are going to call immigration on us,” he says.

Enrique, 49, has heard this all before. It’s not new for him, as an undocumented immigrant in this country for more than ten years, to be underpaid at work and faced with the threat of retaliation should he bring it to the attention of the authorities. All it would take is a phone call to Immigration and Customs Enforcement (ICE).

Only now, with Donald Trump as president, more employers think wage theft is even easier to get away with.

Enrique (whose name has been changed to protect his identity) says that he and his coworkers wonder whether it’s worth it to file a claim with the Department of Labor or the appropriate state agency. “All the workers in the fields that are immigrants experience this fear,” he says. “We don’t really know what we can do.”

But after deliberation and some soul-searching, Enrique did something that exposed him to a risk most of his friends aren’t willing to take. He got a lawyer.

ENRIQUE’S PLIGHT REFLECTS the growing reality in Trump’s America—that immigrants who are victims of wage theft are increasingly afraid to pursue legal remedies.

“The Trump administration’s rhetoric on immigration and its approach to enforcement have made immigrant communities obviously fearful in a new way,” says Laura Huizar, a staff attorney with the National Employment Law Project. “This is going to prevent a lot people from filing wage complaints that they otherwise would have.”

Since taking office, Trump has sought to make good on his vow to harden the nation’s immigration policies. His Department of Homeland Security secretary, John Kelly, issued sweeping guidelines in February that broadened the definition of “removable aliens” and empowered federal authorities to more aggressively detain and deport undocumented immigrants. Trump has also said he wants to hire an additional 5,000 border agents and 10,000 ICE officers.

Immigrants have already felt the weight of a heavier and more pugnacious ICE presence. In March, the chief justice of California, Tani Cantil-Sakauye, sent a letter to Kelly asking him to stop immigration agents from “stalking courthouses and arresting undocumented immigrants.” In response, both Kelly and Attorney General Jeff Sessions wrote her a letter back saying that ICE officers will continue to make arrests in public places.

And, indeed, arrests have skyrocketed. Between January 22 and April 29 of this year, ICE arrested 41,318 people on charges of being in the country illegally—a nearly 40 percent increase from the number of people arrested over that same period in 2016. Worse yet, the number of arrests for immigrants with no criminal records doubled.

It’s no wonder that, in such a climate, victimized immigrant workers are becoming ever more reluctant to assert their rights. “The atmosphere of fear in the immigrant community is as high as I’ve ever seen it,” a former senior-level Labor Department official says. “People aren’t going to school. People aren’t going to church. You can imagine that people aren’t going to the Labor Department to complain.”

A BROADLY ENCOMPASSING term, wage theft can include paying workers less than the minimum wage, forcing them to work off the clock, not paying them for overtime, or not paying them at all.

These practices have long been a reality—a 2010 UCLA Labor Center report found that low-wage workers in Los Angeles alone lose roughly $26 million in wage-theft violations each week—but under President Trump, the problem is quickly becoming exacerbated, according to multiple sources who monitor these matters.

“What I have been seeing more and more is a fear on behalf of immigrant workers that they cannot safely come forward to report wage theft and workplace violations,” says Marc Cote, a Seattle-based employment lawyer who represents Enrique. “This has always been an issue, but it’s become more and more evident since the election of Trump.”

Those who advocate on behalf of immigrants have also noticed that some workers have become disinclined to tell their stories even to them—something that has distressed Analia Rodriguez, who heads the Latino Union of Chicago.

Rodriguez, an immigrant herself, recently came across an undocumented woman who resisted her group’s help. That worker was getting “shortchanged at work,” Rodriguez says. It was only because one of her friends—who was already receiving the Latino Union’s assistance—told them about her situation that Rodriguez learned of it.

“What I’m concerned about right now are people like this worker, who was actually not even willing to come forward to us,” Rodriguez says. “We really don’t know how many people are not coming to community organizations like ours to even try and figure out their case.”

UNDER PRESIDENT BARACK OBAMA, Immigration and Customs Enforcement agreed—through a 2011 memorandum of understanding (MOU) with the Department of Labor—not to interfere with labor disputes or wage investigations.

While immigration activists worry the Trump administration may revoke that MOU, close observers contend that ICE is now ignoring its edict whether or not it’s revoked. “Under this administration, ICE agents are feeling like they can do whatever they want,” the former Labor Department official says.

That violates both the letter and spirit of American labor law. Since the Fair Labor Standards Act passed in 1938, every Labor Department—Democrat and Republican alike—has determined that one’s immigration status is irrelevant at the workplace. “If you work, you get paid, and you get paid at least the minimum wage,” the official add. “The Fair Labor Standards Act applies to people who work in this country.”

But as the Trump administration continues to ramp up its aggressive immigration agenda, certain employers feel freer to ignore the law, hire more—not fewer—undocumented workers, not pay them the wages to which they are entitled, and save on labor costs.

What adds to the concerns of activists and attorneys is that the more immigrant workers submit to these conditions, the more widespread they are likely to become. “The problem is that this results in even more violations, because unscrupulous employers who think their workers won’t report them will think they can act this way with impunity,” Cote says.

For Enrique, initiating a formal complaint was not an easy decision.

The minimum wage in Mexico was raised last December to 80 pesos a day, which is less than $4. If deported, he doesn’t think he could afford to support his family. “If I go back to Mexico, they are not going to be able to eat; they’re able to eat because I work here,” he says. “I’m here out of necessity, not out of desire.”

Nevertheless, he’s willing to take a risk that many other immigrants these days are not. “If something happens to me,” he says, “I’ll have to live with it.”

Eric Cortellessa
The American Prospect

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