Tuesday, February 5, 2008

It’s Time to Protect Domestic Workers

Back in 2006, the Montgomery County Council commissioned a study by researchers at George Washington University about conditions faced by the county’s domestic workers. The study found that domestic workers were frequently paid less than minimum wage, often did not receive overtime pay, rarely had written employment contracts, did not know their rights under U.S. labor laws and did not have enough contact with their peers to facilitate unionization. On that basis, Casa de Maryland and other groups called for a “domestic workers bill of rights” to protect these workers from employment abuses.

The council did not implement the broad-ranging bill of rights, but Council Members George Leventhal and Marc Elrich recently introduced Bill No. 2-08 mandating employment contracts for domestic workers. Under the bill, any employer of a domestic worker must negotiate a written employment contract with that worker. The contract must specify days and hours of work, wages, paid and unpaid time off, and many other conditions of work. Furthermore, live-in domestic workers must have a private room for sleeping with a lock as well as reasonable access to a kitchen, bathroom and laundry facilities. Employers are forbidden to retaliate against workers requesting such an agreement. Any worker who suffers an agreement violation can file a complaint with the County’s Office of Consumer Protection.

On its face, this is a strong system of protection for a very vulnerable class of workers. But as David Lublin has noted, the bill has its critics – even among progressives. Among other things, they question whether employment contracts with domestic workers who are illegal immigrants are binding, whether an illegal immigrant would have to acknowledge his or her immigration status during the contracting process, and whether increased education would be a more appropriate alternative than contracts.

As I’ve probably told our readers before, I have spent my entire adult career in the building trades section of the labor movement. We have to deal with the anarchic intersection of illegal immigration, sometimes murky tax and employment laws and predatory employers on a daily basis. Believe me that these are not easy issues. The critics’ questions are legitimate and deserve to be answered.

1. Is an employment contract with an illegal immigrant binding?

Contrary to popular opinion, it is not illegal for an employer to hire an illegal immigrant. Under the Immigration Reform & Control Act of 1986 (IRCA), an employer may not knowingly hire an illegal immigrant. An employer has a duty to ask for a list of documents from any job applicant but has no duty to verify them with the federal government. When prosecutors go after an employer for hiring illegals, they must prove knowledge of their illegal status in court, which is not an easy task. (That’s why there are so few prosecutions.)

Illegal immigrants execute all manner of contracts in the U.S., including car purchases, business agreements and even mortgages. These contracts are enforceable in court. Labor unions and other organizations routinely recover wages owed to illegals who have been cheated by their employers. Many illegal immigrants are covered by employment agreements, including union-negotiated collective bargaining agreements. So employment agreements involving illegals do not inherently violate the law.

2. Would an illegal immigrant be forced to acknowledge his or her status by this bill?

Bill No. 2-08 is silent on whether the worker is to be classified as an employee or a contractor. That is a meaningful distinction, but not necessarily for immigration status.

Generally speaking, employers may classify workers as independent contractors if they face substantial business risk from their operations, control their own performance and hours of work and own their equipment and capital. When employers set schedules, control work conditions, closely supervise performance and own the relevant equipment and tools, they are supposed to classify workers as employees. Employees are eligible for social security, workers compensation and unemployment benefits while contractors are not. (Because of the immense costs at stake, this distinction is often abused.)

If a worker is classified as an employee, they will be expected to supply a social security number (SSN) and a number of documents establishing legal residency. The employer has no duty to verify them. Illegal immigrants can and do use false SSNs to establish employment (and credit). I have personally audited construction jobsites on which three-quarters of the SSNs used were false. IRCA’s document requirements have spawned a massive phony documentation industry, but that is an inevitable byproduct of a large number of illegal immigrants and a large number of employers willing to hire them.

The consequences of using false SSNs are usually minimal. When a false SSN is used for social security withholding, the Social Security Administration sends “no-match” letters to employers requesting that they provide corrected SSN information. But there is no requirement that the workers be fired, much less deported. (If workers were frequently terminated over no-match letters, half the construction jobsites in America would shut down tomorrow. Trust me on that.) A recent attempt by the Bush Administration to require employers to fire workers with false SSNs was recently turned back by a federal court. It seems unlikely that a President McCain, a President Clinton or a President Obama would seek to institute such a requirement.

It’s much more likely that employers of domestic workers will instead classify them as independent contractors. In that case, the employer would issue a Form 1099 to each worker reporting their compensation for tax purposes. The Form 1099 reports the recipient’s “identification number.” That could be an SSN or an Individual Taxpayer Identification Number (ITIN), which is available to anyone regardless of immigration status.

The IRS is generally forbidden to share taxpayer information with other federal agencies and is delighted to issue ITINs. As IRS Commissioner Mark W. Emerson told the New York Times last year, “We want your money whether you are here legally or not and whether you earned it legally or not.” In 2006, 1.4 million people used ITINs to file income tax returns and many of them were undoubtedly illegal immigrants.

So under either of the above arrangements, a worker would not have to confess his or her immigration status and any possibility of deportation is extremely unlikely. If the bill really did threaten to cause deportations, Casa de Maryland would not be supporting it.

In any case, while the above issues raise some questions, the workers are not better off working “off-the-books.” In my experience, off-the-books arrangements lead to cheating, abuse and exploitation far, far more than the employment contracts proposed in the Leventhal/Elrich bill.

3. Would greater education be sufficient to protect these workers?

The key determinant of whether a worker’s rights under the law are protected is not the worker’s knowledge of them. It’s the available enforcement mechanisms. I have worked on many organizing campaigns in which education of the workers is an important, early component. But even when workers knew their rights, the employers could and did decide to ignore and violate them. Whether the workers were ultimately able to get their rights respected depended on the vigorousness of government enforcement (which was usually weak), the financial strength of the company and the success of the union’s tactics in countering the law-breaking employer. This is a harsh, HARSH country for workers – even those who are citizens, know their rights and have strong unions.

In the case of domestic workers, education in and of itself would be a challenge. How can the government reach them, especially those who live with their employers? How many languages must the government use? How can the government persuade the employers to respect those rights? And exactly what are the workers supposed to do when their rights are violated? Individual domestic workers have almost no power in their workplaces. That’s why they’re so vulnerable. That’s why they’re in need of real protection.

The way I read it, the Leventhal/Elrich bill will not cause mass firings or deportations of domestic workers. And it may very well bring them up out of the working poverty they currently inhabit. It gives them something almost all union members have: an enforceable, written contract that protects them. It’s a good bill. All progressives should line up to support it, perhaps discuss improvements to it, and ultimately pass it.

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