Abstract

Excerpted From: Darlène Dubuisson, Patricia Campos-Medina, Shannon  Gleeson and Kati L. Griffith, Centering Race in Studies of Low-wage Immigrant Labor, 19 Annual Review of Law and Social Science 109 (2023) (2 Footnotes/Literature) (Full Document)

In the United States, 17% of the workforce is foreign-born, and nearly 5% of the civilian workforce is undocumented. Many of these immigrants are among the most vulnerable workers. Immigrant workers have higher labor-force participation rates than do the native-born, but they also work some of the most dangerous jobs for low pay and face an array of discriminatory and degrading work conditions. Overall, only approximately 13% of immigrants in the United States come from Europe or Canada, and only 17.7% identify as White alone, not Hispanic. These White immigrants also have the lowest rates of poverty and highest rates of home ownership. Importantly, wide gulfs persist by race for US immigrants, which reflects what Robinson (2020) dubs “the centrality of race in structuring social and labor hierarchies in capitalist economies.”

Scholars, policy makers, and advocates have shone a light on the factors driving inequities for low-wage immigrant workers of color. Headlines often feature largely Latino immigrant farmworkers laboring in extreme heat in California's Central Valley, Asian immigrant women laboring for meager piece-rate wages in garment districts, Caribbean immigrant women who work as nannies and home health aides, and the ubiquitous sight of immigrant men at day labor sites throughout the county. Low-wage immigrant work in the United States reflects the current demands but also historical exclusions for foreign labor throughout the history of the country. It also reflects the racialization of African Americans and Indigenous peoples.

We draw from the framework of racial capitalism to center race in the discussion of immigrant worker justice. Doing so reminds us that the historical and contemporary factors driving immigrant worker precarity cannot be understood without acknowledging the legacies of how racism has been embedded in systems of capital accumulation and employer-employee relations. Racial capitalism can be understood, Leong (2013) explains, as the process of deriving social and economic value from the perceived racial identity of another person. These inequities persisted even as law changed. Racial exclusions become embedded in labor relations over time and impact who employers hire, the conditions to which workers are subject, and the barriers and pathways for pursuing worker justice.

Most poignantly, the long arc of African enslavement and Indigenous dispossession and genocide has cemented an exclusionary economic system in the United States and globally. These same forces can be traced to the creation of a sizable immigrant workforce in the United States that has no access to citizenship rights. Campos-Medina et al. (2023) note that the historical legacies of racism become connected as the displaced emigrants from colonized regions of Latin America come to the United States to work for low wages in industries once relegated to enslaved Black people. The concentration of these immigrant workers in low-wage and dangerous occupations in the United States today has been dubbed the “brown collar workforce”. Immigration policies have in effect curated employer preferences for seemingly pliant immigrants.

Laws meant to promote worker justice often have loopholes and exclusions that have disproportionate impacts on immigrant workers of color. Even though immigrants enjoy some protections for wages and working conditions, employers have few incentives to comply with those protections. For example, the 1935 National Labor Relations Act strengthened opportunities for workers to engage in collective action. Even so, racist and sexist exclusions became codified, as agricultural and domestic workers were left out of the Act. Other statutory protections include the Fair Labor Standards Act, the many civil rights-era protections, and the Occupational Safety and Health Act. The latter was passed nearly six decades after the devastating Triangle Shirtwaist Factory fire of 1911, where 146 women (mostly Jewish and Italian immigrants) perished in an industrial fire that could have been prevented were it not for employer greed and government neglect. Although considered White today, these women were absolutely racialized as non-White during this era, a designation that was buttressed by their working-class status.

Accessing the immigrant worker justice regime is a formidable task for immigrant workers of color. Only 6.1% of private sector workers in the United States are represented by a union. Without access to help from a union or other community group, worker rights are hard to access. Employers can often fire them with impunity. Individual claims-making through existing federal, state, and local bureaucracies and courts has become a last line of defense. Yet these “fire-alarm” strategies of labor enforcement are especially challenging for immigrant workers who lack work authorization, and who are simultaneously among the most vulnerable . This further reinforces poor working conditions that are often correlated with each other. Indeed, unpaid hours are often the first indicator of myriad other workplace abuses. Although conditions have improved since the major statutory victories for workers in the twentieth century, these gains have not been uniform. Latinos are the only racial-ethnic group whose work-related fatality rate has continued to rise in the United States, and the vast majority of those deaths are foreign-born Latino workers.

Immigrant workers of color often work in jobs located in some of the most deregulated and segregated areas of the low-wage economy. As union levels plummet, flexibilization and the fissuring of employment relations intensify the deregulation of low-wage work. Although there seems to be a current uptick in public support for labor unions, current laws make a substantial increase in actual unionization unlikely. This is in part due to the blurring of the employment relationship (the foundation of statutory protections), through subcontracting, the increase in gig work, and the misclassification of independent contractors. This blurring fosters the conditions that lead to poor wages and working conditions. For example, subcontracted janitors typically have no recourse against a prime contractor who hired them, day laborers classified as independent contractors have no access to workers' compensation insurance, and workers hired through temp agencies are not usually eligible for union representation. These mechanisms help employers evade prohibitions against hiring unauthorized workers (who constitute almost 5% of the civilian workforce, and far more in low-wage industries).

In this regard, we are interested in how laws--and the bureaucracies and agents that implement them--create inequalities through institutional norms and the use of discretion in both labor investigations and immigration enforcement actions . Legal classifications can be very reductionist and institutionalize power differences. As Minow writes, they can “express and implement prejudice, racism, sexism, anti-Semitism, [and] intolerance of difference” and can institutionalize power hierarchies. In the immigration law sphere, this can happen through classifications of immigration status that range from the most underprivileged group (undocumented) to the most privileged group (citizens). A central tenet of the study of law and social science is to consider how race shapes and stratifies social life. Law can differentiate who is in and who is out. The implementation of law enforcement can privilege some groups over others, for example. In this article, we examine immigrant worker justice through this lens. We demonstrate how immigration law differentiates immigrant workers of color in unique ways through hierarchical and exclusionary structures. We also trace these differences to the historical legacies of racial discrimination that persist in the contemporary period of “color blind” laws .

This review offers a framework for understanding the historical and contemporary factors driving immigrant worker precarity, centering race and racialization as an analytical frame. We begin by considering theories of racialized immigrant labor. We then review how racism and colonial legacies create migrant displacement and in turn impact the experiences of immigrant workers. We point to research that uncovers how immigration policy and its implementation drive migrant worker precarity, and the elusive nature of labor protections for immigrant workers. We end by reviewing the efforts underway to move toward greater immigrant worker justice. We highlight the role of the traditional labor movement, but also the increasing importance of worker centers, many of which are centering racial/ethnic identity as an organizing paradigm.

[. . .]

This article has argued for the importance of centering race in how we understand the dynamics of immigrant worker precarity and the possibility of immigrant worker justice. We began by considering long-standing theories of racialization as they apply to immigrant labor. Taking immigrant labor in the United States as a standpoint, we then historicize the emergence of laws that centrally shape the experiences of workers, which have antecedents in the legalized institutions of enslavement and colonial intervention. Turning to the contemporary era, we look at the recent emergence of laws that criminalize immigrants and racialized law enforcement processes that facilitate immigrant surveillance and deportation. We highlight the important role that the workplace plays in immigration enforcement and the detrimental impacts on workers' ability to access their rights.

Beyond the unauthorized population, we also highlight how temporary foreign worker programs (rooted often in colonial legacies of dispossession) keep migrant workers hemmed into particular jobs and vulnerable. We then consider temporary programs (often through humanitarian frameworks) that give migrants labor market flexibility but also introduce enormous uncertainty to their lives. We end by considering the various meso-level organizations that are working to mediate the vulnerability of immigrant workers, harness their organizing power for policy change, and make connections across borders to shed light on the global systems contributing to migrant displacement and exploitation at work. On each of these fronts, connections to the struggles of workers of color have been central.

The theoretical implications of these insights are vast. What we have offered is an interlocking power approach that recasts immigrant struggles through the joint concerns (even if distinct in many ways) of workers of color more broadly. This suggests that a class lens alone is insufficient and that a homogenizing approach to labor struggle will not fully illuminate the foundations of immigrant worker precarity. However, we have also cautioned the tendency to fixate on immigration status alone as the singular driver of immigrant worker precarity. Historical capitalist relations, and at-will employment laws today, are all important foundations for immigrant worker precarity. Further, beyond unauthorized workers, the examples of guestworkers and other categories of temporary status reveal that race has shaped immigrant exclusion across the gamut, and that racialized immigrant enforcement practices have far-reaching effects.

Possibilities for immigrant worker justice must also grapple with the centrality of race. Immigrant worker justice must be understood within the broader framework of how racist labor hierarchies of the past reverberate today. Worker “precarity” cannot be fully understood without considering the ways that racism simultaneously structurally disadvantages low-wage immigrant workers of color and affects their everyday experiences at work. The joining of labor, immigration, and race scholarship, on historical and contemporary immigrant worker realities, is an essential step forward. A racialized immigrant labor lens is also key to studies of movements for immigrant worker justice. Despite some bright spots in organizing, major challenges persist that require an intersectional lens and direct challenges to white supremacy and patriarchy.

In doing so, we need to think beyond just the state, and to consider the importance of social movements and civil society for addressing the joint struggles of racial and immigrant injustice. Alliances can be exceedingly difficulty to build (Van Dyke & McCammon 2010). Immigrant rights groups have found an ally in the national, and many state, AFL-CIO leaders. However, racial animus persists in many local labor movements as immigrant labor grows, and that is the heart of where organizing is most pressing. And although immigrant rights groups have started to build ties with racial justice groups, the familiar narratives of deservingness become a barrier to ally-ship. The roles of abolitionist perspectives (for both immigration detention and the broader carceral state that targets Black and Latino men in particular) and capitalist critiques (for understanding migrant displacement and the disenfranchisement of communities of color writ large) remain nascent points of solidarity.

As the world becomes smaller, efforts to enhance immigrant worker justice have increasingly adopted a trans-border perspective that interrogates the lasting effects of slavery and colonial legacies in both countries of origin and destination contexts (Bada & Gleeson 2019). For example, Maich (2014) reveals the patterns of colonial and racialized relations for Latin American migrants in Latin America and the United States. The struggle for immigrant worker justice requires an accounting of historical racisms, but the specificity of each context (nation and city, industry, worker identities) is critical as well. These transnational actors reveal too that the tools of fighting for immigrant worker justice need not simply be domestic labor agencies and district courts. The role of global governance (at the United Nations, the International Labor Organization, and even the Inter-American Commission on Human Rights) (Serna de la Garza 2019) in marrying the national protections of migrants and those against racism and xenophobia gives advocates yet another tool for mobilization at the global scale.

As we consider a law and social science research agenda for understanding immigrant worker justice, we return to a central tenet of the field: The gap between laws on the books and law in action is vast (Calavita 2010). Yet is also difficult to document. Extant tools from large-N studies are critical for documenting trends over time, as well as variations between immigrant and native-born workers and within the vast immigrant workforce. However, these approaches are riddled with challenges too. Surveys struggle to enumerate vulnerable workers such as undocumented workers, and identifying instances where vulnerable workers--especially immigrants--experience and push back against workplace abuses can be difficult. Immigrants are underrepresented in key sampling frames; identifying their key characteristics (such as nativity and immigration status) becomes ethically and logistically challenging for surveys and in administrative data. Citing confidentiality, labor standards enforcement agencies do not typically attach identifying information like demographic data to public claims data, and on the whole avoid collecting data on immigration status altogether (Gleeson 2014).

Moving forward, therefore, a research agenda that centers racial capitalism in the study of immigrant worker precarity and justice initiatives must also center comparative historical methods, as well as bottom-up approaches to capturing immigrant worker narratives. These ethnographic data help us unpack the on-the-ground experiences behind color-blind policies of labor regulation, immigration enforcement, and discrimination protections. The black letter of the law is important, but discretion can make a big difference to how it is applied (Lipsky 1980) and when it does and does not matter (Armenta 2012). Qualitative approaches that center an intersectional theoretical approach can help provide a clearer view of the mechanisms driving inequality (Solorzano & Yosso 2001). Centering the voices of immigrant workers themselves also helps reveal moments of immigrant agency, even in the face of significant challenges as immigrant workers strategize to survive and enact social change (Gomberg-Muñoz 2010).

Department of Anthropology, University of Pittsburgh, Pittsburgh, Pennsylvania, USA; 

ILR School, Cornell University, Ithaca, New York, USA;