The Suit

In a press release earlier this year, the Equal Employment Opportunity Commission (EEOC) described the “hostile work environment” that Koch Foods had created for its employees:

EEOC alleges that supervisors touched and/or made sexually suggestive comments to female Hispanic employees, hit Hispanic employees and charged many of them money for normal everyday work activities. Further, a class of Hispanic employees was subject to retaliation in the form of discharge and other adverse actions after complaining.

After receiving claims of discrimination from eleven plant workers, the agency had filed a class-action lawsuit against the company that would ultimately drag on for eight years.

Koch Foods has faced similar suits stemming from wage theft and discrimination in the past.

The harsh conditions Koch Foods workers endured aren’t unique to their employer, industry, or location. According to an agency report, the EEOC resolved 90,558 charges of discrimination last year. Retaliation by employers “continued to be the most frequently filed charge filed with the agency (51.6%), followed by sex, disability and race.” Retaliation in this context means any adverse action an employer takes against a worker for engaging in legally protected activity, such as making a harassment complaint. While not every complaint was resolved in the reporting victim’s favor, the data also doesn’t account for the untold number of unreported abuses that workers across all sectors experience. The appalling conditions at Koch Food plants weren’t the product of a few mean-spirited supervisors; they are common, systemic features of the modern US workplace, where companies are granted enormous power over their employees.

The deck is especially stacked against undocumented workers. While the law considers employer threats to report an employee’s undocumented status illegal retaliation, ICE is almost always permitted to act on an employer’s report and then use its own discretion. ICE has proven repeatedly that the courts are unsafe places for immigrants seeking to safeguard their rights. Any undocumented worker who refuses to be cowed and raises their voice also risks being ripped from their homes. And it’s possible that that’s exactly what Koch Foods had in mind.

Selective Enforcement

This raises an important question: If the government insists on criminalizing employees that work in the United States without status, why don’t they penalize businesses that employ undocumented workers with equal vigor? The answer is simple: ICE is a coercive tool used to ensure that undocumented workers remain scared and vulnerable.

Legally, it is just as unlawful for an employer to knowingly employ an undocumented immigrant as it is for an employee to work without legal status. Enforcement of the law, however, is severely lopsided. The government must prove the employer “knowingly” hired undocumented workers — and employers have an easy out, as there is often no paper trail. Even when they are penalized, fines are much more likely than criminal prosecution.

And most of the time, there’s a complete unwillingness to investigate businesses. Most years see fewer than twenty prosecutions of employers. Compare that to the thousands upon thousands of undocumented immigrants and workers detained every year. Between March and April of this year, Buzzfeed reports, “only 11 employers — individuals, not companies — were prosecuted for hiring immigrants without proper documentation. During that same period, 120,344 people were prosecuted for illegal entry or illegal reentry.”

This isn’t to say that we should be calling for stepped-up prosecution of employers who hire undocumented workers. That would do nothing to safeguard the rights of immigrants. Instead, we have to expose and confront the truth that American capitalism doesn’t have a problem with exploited undocumented labor powering our country so long as it remains docile. Employers are perfectly happy treating undocumented workers like expendable commodities, there to be exploited at a whim and thrown away when they dare exercise their rights.

ICE’s merciless arrest and removal of workers also lays bare the marriage between capitalist exploitation and white supremacy. Dissent in the workplace is quelled, while the expulsion of racial “undesirables” brings white nationalist aspirations closer to realization.

A Firsthand Look at Fear

It doesn’t take a legal expert to recognize the chilling effect that threats of detainment and deportation have on undocumented workers. But seeing it happen in real time is at once infuriating and demoralizing.

My earliest days practicing law involved a particularly unscrupulous employer who owed several workers tens of thousands of dollars in damages for unpaid wages. Despite the sluggishness and inequities of the justice system, we were confident that the mountain of evidence we had would hold up in court.

Overnight, our confidence turned to panic. Out of nowhere, the defendant informed us he had contacted the Social Security Administration and other government agencies with claims of fraud against our clients. As we told one of the workers, an older man who toiled long hours to provide for his children and grandchildren, a look of defeat washed over his face. He was suddenly unsure if it was worth continuing the case, even though he knew he would probably win it. He and his coworkers had launched the suit not just for their own benefit, but to set an example for any boss who wished to mistreat their workers.

In the end, things worked out. The defendant was hit with an emergency restraining order, and the authorities thankfully never followed up on the report. But in other cases, workers weren’t as lucky.

Day laborers seeking counsel for similar claims would ask me if the law would protect them from retaliation. On paper, I told them, it would. In practice, ICE could make any decision they wanted to, and we were powerless to stop them. That same look of doubt would creep over their faces, their courageous intentions butting up against the realities of workplace despotism. After Trump’s election, some stopped returning my calls altogether.

This toxic mix of capitalist exploitation and state-enforced nativism is assaulting the rights of undocumented workers — and weakening the working class more broadly. Just as our modern police forces grew out of slave-catching patrols in the South and strikebreaking forces in industrializing New York, ICE is a weapon for the ruling class to use against workers who resist their subordination. It’s time we recognize that the fight for immigrants and the fight against the bosses are one and the same.