International Migrants Day - "Best Kept Secret" in the USA

I am spending much of today, December 18th, otherwise known as International Migrants Day, flying from New Orleans back to New York and reflecting on the intensity of the past two days taking a deposition in a lawsuit involving over 500 men from India who were trafficked as H-2B guestworkers (or temporary workers) to work in shipyards in Mississippi and Texas in the wake of Hurricane Katrina.

I would wager that few, if any, of my clients are aware of this day; International Migrants Day will doubtless receive scant attention in the American media, and its very existence would come as a shock to most Americans, so why would it be any different to a group of guestworkers from India? But International Migrants Day is important and should be more widely known, and here is why: International Migrants Day began in the year 2000, when the United Nations General Assembly passed a resolution (resolution 55/93) to reflect the UN’s adoption of the landmark International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (resolution 45/158), which took place on December 18, 1990. That treaty guarantees migrant workers and their families some fundamental rights including:

• freedom from discrimination based on race, national or ethnic origin, sex, religion or any other status, in all aspects of work, including in hiring, conditions of work, and promotion, and in access to housing, health care and basic services.
• equality before the law regardless of a migrant’s legal status.
• freedom from arbitrary expulsion of migrants from their country of employment.
• protection of migrant workers and their families from violence, physical injury, threats and intimidation by public officials or by private individuals, groups or institutions.

Part of the reason that you may have never heard about the Migrant Worker Convention is because the United States has not yet signed or ratified it, and (historically) the U.S. government has shown great reluctance to allow a spotlight to shine on its human rights record with regard to migrant workers.

The reluctance of the U.S. government is understandable as one only needs to examine the conclusions of the UN Special Rapporteur on the Rights of Migrants who recently visited the United States (at the invitation of the U.S. State Department) and who issued a scathing report on the treatment of migrants in this country. Or one could examine the Concluding Observations of the UN Committee on the Elimination of Racial Discrimination to hear this very respected body’s conclusions and concerns about discrimination and abuse facing migrants in the United States.

Of course, you don’t need to read UN reports to realize that low-wage immigrant workers in the U.S. are subject to poor treatment; all you have to do is to speak to some of these workers and hear their stories. However, even among this population of workers, currently, there are three discrete groups who are most vulnerable to exploitation, discrimination, and human rights abuses – Guestworkers, undocumented workers, and domestic and agricultural workers:

1) Guestworkers
The inability of workers to take their guestworker visa from one employer to another forces workers to continue working for abusive employers. Combine that with the guestworker’s very ability to remain in the U.S. being contingent upon their continued employment with their “employer/sponsor” and you see how workers are prevented from asserting even basic workplace rights. Add to that, exploitative working conditions that workers face, and fraud and abuse in recruitment (most guestworkers arrive in the U.S. buried in mountains of debt that they have paid to recruiters and traffickers in their home countries and here) and you can see how workers literally cannot afford to be sent back to home. Add to this toxic mix, physical and linguistic isolation, racial discrimination, and on occasion violence and physical abuse and you get a sense of the “perfect storm” of vulnerability that guestworkers find themselves in.

2) Undocumented Workers
In the wake of the U.S. Supreme Court’s Hoffman Plastic decision in 2002, employer defendants have cited Hoffman in contending that undocumented workers are not entitled to fundamental workplace remedies under labor or employment-related statutes, including Title VII, the Fair Labor Standards Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the state law equivalents of federal anti-discrimination and workplace wage and hour protections. Some courts have exported the Hoffman rationale into other contexts, restricting both undocumented workers’ access to courts and entitlement to various rights and remedies. Undocumented workers have lost safeguards in the areas of accessible remedies when injured or killed on the job, overtime pay, workers’ compensation, family and medical leave, and other areas. Low-wage South Asian and Muslim workers are particularly vulnerable, as they face intersectional forms of anti-immigrant hostility, employment abuse, and post-9/11-related discrimination. For more information on ACLU human rights litigation related to the rights of undocumented workers, click here.

3) Domestic and agricultural workers
Domestic workers and agricultural workers are explicitly excluded from certain protections set out in the federal Fair Labor Standards Act (guaranteeing the right to minimum wage and overtime pay), the National Labor Relations Act (ensuring freedom of association), and the Occupational Health and Safety Act (protecting health and safety while at work). There is an explicit racialized history to the exclusion of these groups from protection, as at the time of the passage of these standards, in the 1930’s, the growers’ lobby and other moneyed interests pressured Southern senators to exempt the largely African American worker populations of farm-workers and domestic workers from these basic worker protections. In the contemporary context, domestic workers are mostly immigrants from South Asian, Caribbean, and Latin American countries, and agricultural workers are mostly Latin American immigrant, Haitians, and African-American. To read profiles of domestic workers who have come forward to challenge abuse and to learn more about the ACLU’s work on this issue, click here.

Let us use the occasion of International Migrants Day to reflect on the need to educate ourselves and each other about the abuses suffered by migrant workers in this country, many of which are “hidden in plain sight.” Let us resolve to pressure the Obama administration to take steps to protect and preserve the human dignity of all persons consistent with President-elect Obama’s pledge on the human rights day: “let us rededicate ourselves to the advancement of human rights and freedoms for all, and pledge always to live by the ideals we promote to the world.”

For more detailed analysis of the human rights abuses faced by immigrant workers in the United States, click here.