Illegal Rights

Earning $2 per hour for seven years

by Domenico Maceri

Imagine being paid two dollars an hour in California. Difficult to conceive? It happened to a taco stand worker. It lasted seven years. The worker apparently was undocumented. Abuses of undocumented workers are commonplace, but they are usually well hidden. Once in a while, however, they make the news. Bizarrely, even when the abuses become obvious, the guilty party always seems to be the worker and not the company.

That's the only way to interpret the Supreme Court decision recently to deny back pay to a worker because he was undocumented. In a 5-to-4 vote, the Court found that Jose Castro, an undocumented worker from Mexico, could not collect $67,000 of back pay because of his immigration status. He had been fired by the company for union-organizing activities. Having broken the immigration law, the Court ruled, the worker was not entitled to workers' protection. The reason for the decision was to discourage future violation of immigration laws. Writing for the majority, Chief Justice William H. Rehnquist stated that "awarding back pay to illegal aliens runs counter to policies underlying" federal immigration law.

It's not just the Supreme Court that's going against undocumented workers. Americans in general are angry with undocumented workers for breaking the law. The anger is easily understood. But it's difficult to justify when we consider the economic situation of the undocumented workers and the reason for "breaking the law." Given the poverty and desperation of the home country, some immigrants make the difficult journey to the US in the hope of a minimum wage job. Some don't make it and die in the process. Almost 500 Central Americans died as they were illegally entering Mexico on their way to the US. And last year more than 100, most of them Mexican nationals, died as they were crossing the Mexico/US border. Undocumented workers are no different from the hungry person who steals bread because he is hungry.

You'd have to be pretty cold hearted not to sympathize with such a person. Americans ought to direct their anger at the companies that hire undocumented workers. If the workers were not hired, they would not be here. Companies claim they do not know if the worker is undocumented. It's not the company's job, they insist, to make sure that the worker is in the country legally. But the truth is, most companies don't care if a worker is in the country legally or not. When presented with fake documents, companies merely look the other way. Since they don't pay much, and can't find many Americans to work in the service industry and agriculture, they are only too glad to have people who accept their job offers. This is especially true when people have no legal right to complain if they are unpaid or poorly (even illegally) treated.

Although companies that knowingly hire undocumented workers are liable, they are typically not prosecuted. If Americans are angry about lawbreakers, there are plenty of companies where they could start pointing fingers. Undocumented workers, on the other hand, are most vulnerable. They can't complain about wages, working conditions, and even sexual harassment. The most vulnerable are those who had to cross two or more borders to make it to the US for a minimum wage job. In some cases the trip may have been expensive. Smugglers sometimes charge $3000 or $4000, a small fortune for a Central American or Mexican who must pay it back to lenders back home. Keeping the minimum wage job in the US is vital, for it may mean that loved ones back home will not go hungry. Some workers even accept jobs that pay less than the minimum wage.

The decision by the Supreme Court to deny back pay to the undocumented worker increased the vulnerability of all undocumented workers for it sends them a clear message: you complain and you'll have more problems. Writing for the minority in the Castro case, Justice Stephen Breyer said the ruling would encourage other companies to violate labor laws. In essence, in order to punish one group of people who have broken the law, we are going to make it much easier for bigger, more powerful criminals to break the law. The Supreme Court decision made clear that legally employed workers have rights that undocumented workers do not share. Some lower courts still make sensible and humane decisions despite the Supreme Court ruling. A San Diego Superior Court judge recently ruled that the taco stand worker was entitled to $32, 000 in back pay. And in a similar case, a US District Court judge in Los Angeles ruled that immigrant status was not relevant in a class-action suit, which aimed to collect minimum wage back pay. In both cases, the companies cited unsuccessfully the Supreme Court ruling in the Castro case. The judges didn't bite. That's a bright spot for undocumented workers. However, more needs to be done to make sure that working people, regardless of which side of the border or ocean they were born on, are treated with the humanity we all share.

Domenico Maceri teaches foreign languages in California.