The Use of Forced Labor in Private Immigration Detention Centers

A recent ruling from the District Court of Colorado marked a small victory in the fight against unpaid, and underpaid labor in privately operated immigration detention centers.

At the end of February, Judge John Kane certified a class action lawsuit against GEO Group (“GEO”), one of the country’s largest private prison and detention center operators. The lawsuit, Menocal v. GEO, alleges that GEO violated the Trafficking Victims Protection Act (TVPA) by threatening immigration detainees with solitary confinement unless they agreed to complete maintenance tasks without pay. It also alleges that GEO was unjustly enriched by using detainee labor for other tasks at a rate of $1/day. Immigration detention centers save around $40 million each year by having detainees work for pay below minimum wage.

In his decision, Judge Kane certified two classes – one which includes around 2,000 people who participated in the $1/day “Detainee Voluntary Work Program” at GEO’s Aurora facility over the last three years, and the other which includes all 60,000+ people who were detained at the facility in the last ten years and forced to work there without any pay. The claim is novel in its scope and its use of the TVPA, and could have drastic impacts in the immigration detainee business – GEO runs five of the countries ten largest detention centers.

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Today’s News & Commentary — June 7, 2017

The Supreme Court has been asked to reconsider whether arrangements requiring non-union employees in the public sector to pay fair share or agency fees violate the First Amendment of the Constitution.  Yesterday, Mark Janus, an Illinois state employee, petitioned the Supreme Court to review the Seventh Circuit’s decision in Janus v. AFSME and consider overturning the Court’s precedent in Abood v. Detroit Board of Education.  This petition comes just one year after the Court was asked to consider its precedent in Abood in Friedrichs v. California Teachers Association but split 4-4 following Justice Scalia’s death.  A decision overturning Abood could weaken unions financially and politically.  Read more here.

Bloomberg reports that Uber terminated more than 20 employees following an investigation by the law firm Perkins Coie into reports of harassment and discrimination at the ride-sharing company.  Perkins Coie was hired along with the D.C. firm Covington & Burling to examine Uber’s workplace culture.  Perkins Coie examined 215 workplace claims but did not act in response to 100 of these human resource complaints.  Read more here.

Lyft also made the news this week.  The ride-sharing company announced a deal with NuTonomy Inc.  The two companies will work together to test self-driving cars in Boston.  Lyft has also partnered with Waymo and General Motors Co. in the race to put self-driving cars on the road.  Read more here.

The New York Times reports that the Trump Administration has moved to undercut several workplace safety initiatives.  These actions signal a shift in the direction of the Occupational Safety and Health Administration (OSHA) even though President Trump has yet to put forth a nominee to lead OSHA.  The Trump Administration has suggested changes to the beryllium rule, which was updated under the Obama Administration.  These changes might exclude some important industries from coverage.  The Trump Administration has also delayed enforcement of the silica rule and a rule mandating that employers report their violations so that they may be made publicly available online.  Furthermore, Trump’s budget indicates the Administration’s suspicion of workplace safety programs by proposing getting rid of the Chemical Safety Board and cutting a grant program which educates workers with limited English proficiency on safety hazards in especially dangerous industries.  

Expanding the Workers’ Bill of Rights

I recently proposed a Workers’ Bill of Rights, and invited others to respond with suggestions for other rights that should be included.  I did receive some helpful comments, and in response I would propose adding three additional rights to the ones I had previously proposed:

A Right to Strike and Engage in Other Concerted Actions:  These are the key rights protected by the National Labor Relations Act (NLRA), but, as James Gray Pope, Ed Bruno, and Peter Kellman recently pointed out, they often exist more in theory than in fact. There are many reasons for this, but at least in the private sector, here are some of the key ones:  First, an employer’s ability to permanently replace striking workers, particularly when combined with a constant reserve of unemployed individuals, has virtually eliminated the strike as a viable weapon for most workers. Next, few workers are aware of their rights under the NLRA.  When the Labor Board took a small step to address this ignorance by issuing a rule that required employers to post notices informing workers of their rights, employers succeeded in enjoining the rule.  In addition, when employers interfere with these rights, it can take years to obtain a legal victory, and the victory is often hollow because the NLRA does not impose any penalties on employers.

A Right to Be Free from Discrimination:  One of the places where we have made real strides in this country over the last forty years is in combatting race and sex discrimination in the workplace.  It hasn’t gone away, and workers are still often too scared to speak up when their supervisors are the perpetrators, but most employers at least proclaim a commitment to fight race and sex discrimination.  Unfortunately, in many cases this commitment to combat discrimination does not extend to discrimination based on sexual orientation or gender identity.  The circuit courts are split on whether Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation.  Only about half the states outlaw employment discrimination based on sexual orientation and gender identity.  Thus, while the Constitution may protect the right of same sex couples to marry, it does not prevent their employer from firing them for exercising that right.

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Today’s News & Commentary — May 26, 2017

Maryland’s governor vetoed a paid sick leave bill yesterday, saying the measure would be  “disastrous to our state’s economy.”  The bill would have required employers with over 15 workers to provide at least five days of paid sick leave.  The bill, which garnered enough votes to overcome a veto, may be overridden in the 2018 legislative session.  Governor Larry Hogan had supported an alternative bill, which would have covered companies of 50 employees or larger.

Tesla announced a new VP of HR earlier this week, on the heels of a new report about unsafe working conditions at the sustainable car company’s Fremont, California factory.  As Buzzfeed News reports, Tesla has recently dealt with revelations about hazardous working conditionsracial and sexual harassment, and unfair labor practices.  (You can find some of our previous coverage about the UAW organizing efforts that led to the unfair labor practice allegations here.)  This was the third Tesla HR executive to leave this year.

The reports about President Trump’s budget continue.  AP highlights the proposed elimination of the Senior Community Service Employee Program, a 50 year-old program that gives unemployed seniors training and part-time minimum-wage jobs.  The New York Times details myriad proposals with implications for undocumented immigrants.

Boston Review published an essay about the right to strike, along with a dozen responses. Its most recent issue also features a series debating a universal basic income.

Weekend News & Commentary — May 20-21, 2017

Updating our coverage yesterday, more than 35,000 members of the Communications Workers of America (CWA) are striking this weekend after the union and AT&T failed to agree to a new long-term contact by the union’s Friday afternoon deadline.  The walkout forced stores across the country to close, though AT&T insisted that most of its locations were still open.

Laurie Stalnaker with the Central Labor Council, AFL-CIO, San Bernardino and Riverside Counties has an op-ed in the Press-Enterprise discussing the recent efforts of the AFL-CIO to protect undocumented immigrants, and issuing a call for additional solidarity among workers across the political spectrum.

Dueling rallies in Italy on Saturday exposed sharp political divisions on worker and migrant issues as the country turns toward parliamentary elections due to occur at the beginning of 2018.  In Umbria, thousands of supporters of the populist 5-Star Movement marched in support of a guaranteed minimum income for Italian citizens, while in Milan, similar numbers demonstrated against racism and intolerance.  The government’s response to the tens of thousands of people crossing the Mediterranean fleeing violence or searching for economic opportunities has boosted 5-Stars’ national profile as it seeks to appeal to poorer Italian voters by melding nationalistic, anti-immigrant messages with an anti-poverty and income inequality platform.

The Canadian government has banned officials from seeking information from social media accounts of applicants for disability benefits, unemployment benefits, and other social programs after reports surfaced that employees were using publicly available information to check details provided in applications.  Senior officials stated that they feared such searches might violate the Canadian Charter of Rights and Freedoms and the Privacy Act.

 

Today’s News & Commentary — May 15, 2017

The New York Times describes in a feature how the Iranian economy has created serious unpredictability for individuals seeking jobs. The only stable jobs are in government, yet older individuals who currently have these jobs have stuck around; when they refrain from retiring, younger Iranians are caught in “a vicious cycle of hidden poverty.” The struggle to find consistent employment for a younger lower and middle class—many of whom have professional and advanced degrees—lies in contrast with the influx of money into Iran in recent years.

A feature in the Atlantic describes how men who have lost manufacturing jobs are becoming nurses or surgical technicians instead. The article explains how many of these have historically belonged to women, due to their lower pay and the perception that “jobs that require caring for and tending to others” are for women. Yet the stereotype is breaking down, as an increasing number of men—former plumbers and electricians—train to be registered nurses and radiation technicians.

The Ninth Circuit heard oral arguments today in an appeal of an injunction on President Trump’s second travel ban. The case, Hawaii v. Trump, is brought by the state on behalf of its residents, some of whom are immigrants who have work visas. The series of cases that arose after the President’s travel bans were signed have drawn participation from companies that rely on immigrants, who make up a significant part of their workforces.

Today’s News & Commentary—May 11, 2017

The New York Times reports that Canada’s technology sector may benefit from the Trump Administration’s efforts to restrict immigration and immigration’s increased centrality in the American political debate.  After the travel ban was announced, Canada received an increase in temporary and student visa requests.  While not enough time has elapsed to determine whether the “Trump effect” has staying power, early signs indicate that fields, such as artificial intelligence, will benefit by attracting foreign workers.  The Atlantic suggests Canada is well-positioned to capitalize on these developments.  The country has publicly welcomed immigrants and invested in its technology sector.  Read more here.

Uber is piloting a personal injury insurance program for drivers in eight states.  The insurance program will be funded by a mix of increased fares for customers and a fee for drivers who opt-in.   Customers will pay five cents more a mile in these states, and drivers will contribute 3.75 cents per mile.  Maximum benefits will equal $1 million for medical expenses, $150,000 in survivor benefits, and wage replacement of fifty percent of a driver’s weekly earnings.  However, Uber has not escaped criticism by instituting this program.  Commenting on this development, Rebecca Smith, the deputy director of the National Employment Law Project, objected to the optional nature of the program and stated that “[i]f Uber valued its workers, it would simply pay its workers’ compensation premiums and cover all of them.”

In other gig economy news, the New Yorker published a piece on liberals embrace of the gig economy.  Nathan Heller details the connections between Democratic political operatives and companies, such as Airbnb and Uber.  While showing that the gig economy is a source of wealth for some, the article highlights evidence suggesting that those who benefit the most from the gig economy are not the same people who benefited from the service industries being disrupted.  Describing the findings of Boston College Sociology Professor Juliet B. Schor, Heller observes,

“[i]nstead of simply driving wealth down, it seemed, the gigging model was helping divert traditional service-worker earnings into more privileged pockets—causing what Schor calls a ‘crowding out’ of people dependent on such work.  That distillation-coil effect, drawing wealth slowly upward, is largely invisible.”

In light of these effects, Heller asks what can be done to make the gig economy viable over the long-term.  Read more here.

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