By Monica Guizar
Employment Policy Attorney

     A U.S. Immigration and Customs Enforcement (ICE) audit this past spring of an Emeryville, California, hotel was initiated after the hotel’s management contacted the hotel owner’s congressperson, who then wrote to the head of ICE asking that the agency investigate the immigration status of hotel employees.  For about a year, workers at the Woodfin Suite Hotel had been organizing to enforce a local living wage ordinance, and they had sued the hotel for failing to pay the living wage.  Hotel management had retaliated by requesting that the Social Security Administration (SSA) verify whether the workers’ Social Security numbers (SSNs) matched SSA’s records and firing those workers whose SSNs did not match.  The management also threatened to contact immigration authorities.

     The connection between the ICE audit and the hotel management’s contacting of U.S. Rep. Brian Bilbray, a Republican from San Diego, was uncovered when a spokesperson for Bilbray told a San Francisco Bay Guardian reporter that a hotel human resources staffer had asked Bilbray’s office for help on Feb. 1.  The Guardian reported that Bilbray subsequently wrote a letter to Dept. of Homeland Security Assistant Secretary Julie L. Myers, ICE’s head, “to request that it investigate the immigration status of Emeryville Woodfin Suites employees in order ‘to create a mechanism for the employer to address this issue.’”  “This issue” was the fact that a state superior court had ordered the hotel to rehire the 21 workers it had fired just before Christmas 2006.  During subsequent litigation, hotel management cited the ICE audit and a series of other raids ICE had conducted in the Bay Area as justification for having fired the workers.  This prompted the Guardian to investigate why ICE had targeted the Emeryville hotel.  (Joseph Plaster, “Calling in the Feds: Hotel Sought Immigration Audit of Workers Asserting Their Right to a Living Wage,” San Francisco Bay Guardian, June 13, 2007.)

     After the firings, hotel workers and other members of the local community had protested them vigorously.  U.S. Rep. Barbara Lee, a Democrat representing the East San Francisco Bay area, had notified the local ICE office about the ongoing labor dispute and requested that ICE follow its internal  “Questioning Persons During Labor Disputes” guidance.  Under this guidance, ICE agents are to ask certain questions of individuals who contact them with information about alleged undocumented workers.  Whenever information received from any source creates suspicion that an immigration enforcement action initiated as a result of it might place agents into the middle of a labor dispute, they are to make a reasonable attempt to determine whether a labor dispute is ongoing at the worksite in question.  The guidance clearly states that when ICE agents know or have reason to suspect that a labor dispute is occurring at a worksite, before taking action at that worksite they should get clearance from higher-level authorities in order to avoid conducting an inappropriate raid.  (For more information on ICE’s internal guidance regarding this issue, see NILC’s Issue Brief: Immigration Enforcement During Labor Disputes.) 

     By engaging in an immigration audit at the behest of an employer, ICE undermined labor and employment laws, and the effect of its behavior in this case is to encourage employers to use workers’ immigration status to retaliate against them when they demand what they are due under the law. 

     The fact that ICE conducted an I-9 (employment eligibility verification form) audit at Woodfin management’s request, despite the ongoing labor dispute and pending litigation, is particularly disturbing given that ICE’s purported strategy for “effective worksite enforcement” includes ensuring fair labor standards.  ICE claims to target employers that exploit immigrant workers and that violate labor and employment laws, but the actual effect of its enforcement actions is, ultimately, to make it easier for employers to flout these laws.  For example, after ICE raided three Fresh Del Monte Produce plants in Portland, Oregon, recently, it was reported that the employer had allegedly committed serious labor and employment violations, yet none of the workers detained in that ICE raids were allowed to file or pursue claims against their employer.

     While ICE has stepped up its enforcement efforts over the past several months, employers have been taking advantage of the increased raids to retaliate against immigrant workers for exercising their workplace rights.  Advocates should continue to educate workers, regardless of immigration status, about their workplace rights and encourage all workers to enforce labor and employment laws.