Slim’s, with its red banner and neon OPEN sign, is a retro self-serve burger joint in Chicago’s Ravenswood neighborhood. It is small. It is hot. And every day, Eduardo works in its kitchen.
Eduardo is an undocumented immigrant who was born in Mexico City. He went to school outside the city, in a makeshift elementary school near where his grandparents lived. “There were only two classrooms,” he told the HPR. “In one classroom, they taught three grade levels — first, second, third — and in the other, they taught fourth, fifth and sixth.” Though Eduardo knew this, he never got to see both classrooms. He dropped out of school before the fourth grade.
On November 5, 1993, the 19-year-old Eduardo moved to the United States and landed in Chicago. He did not know how to wash dishes. He did not know how to cook. But now, Eduardo has worked in the food service industry for over 15 years — before he started flipping burgers at Slim’s, he worked in restaurants like California Pizza Kitchen, Maggiano’s Little Italy, and the Cheesecake Factory.
The COVID-19 pandemic has shined a spotlight on workers like Eduardo, deeming them essential frontline workers. Grocery store cashiers, delivery drivers, and physicians alike have witnessed a surge in admiration, with low-paying jobs that were formerly considered substandard seeing a particularly sharp spike. Lawn signs thanking essential workers dot the streets as undocumented workers continue to work behind the scenes.
Undocumented immigrants make up 5.5 million of the workers in essential industries in the United States, including the 846,100 working in restaurants. At work, they are vulnerable to both the coronavirus and deportation, yet they lack access to the same protections as their coworkers. They do not receive stimulus checks. They do not qualify for unemployment benefits and cannot access Medicaid. They have few resources to report mistreatment and fear deportation by Immigration and Customs Enforcement.
Instead of lawn signs, undocumented essential workers need safe working conditions and relief from financial distress — things authorized workers are automatically entitled to. Undocumented essential workers are doing the same jobs as authorized essential workers, and as such, deserve access to equal legal remedies.
Do Undocumented Workers Have Rights?
The pandemic has raised difficult challenges for undocumented immigrants, yet these workers are often inadequately protected by their employers. Shannon Gleeson, a professor in Cornell’s Labor Relations, Law and History Department, says employees lacking the protection of a union are especially vulnerable to at-will employment, meaning they can be fired with little justification. This possibility puts workers in the precarious position where they have to choose between arbitrarily losing their jobs and demanding something like more comprehensive health insurance in a global pandemic.
“Your boss can walk in and say, ‘I don’t need you anymore today,’” Gleeson told the HPR.
Once this happens, she said, it is nearly impossible for workers to prove the reason they were fired. If an employee speaks up about the lack of mask availability, the employer could claim they were fired for working poorly. And, Gleeson added, it is very difficult for workers to prove the employer has unfairly retaliated against them and get their jobs back.
Recent research confirms her point. A study from the National Employment Law Project found that 37.1% of unauthorized workers were victims of minimum wage violations, while 84.9% of unauthorized immigrants were not paid their overtime wages. Fearing retribution, undocumented workers may be more likely to put up with mistreatment and less likely to speak out.
One historical explanation for this data lies in the Immigration Reform and Control Act of 1986, which required employers to only hire authorized workers and threatened sanctions for noncompliance. Undocumented immigrants whose employers hired them despite knowing they were not authorized to work can make the workers “subject to potential control by the employers who can hold this over them,” as Gleeson said. Unauthorized workers are unlikely to file complaints due to their immigration status, making them vulnerable to exploitation and intimidation in the workplace.
Because federal agencies can only hold employers accountable through the claims filed by employees, undocumented workers may face other serious abuses in the workplace without access to the same remedies as their coworkers. In 2018, Koch Foods, a food processor and distributor, paid $3.75 million to Hispanic workers at their Morton, Mississippi chicken processing plant as part of an Equal Employment Opportunity Commission suit settlement. As alleged by the settlement press release, “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.”
The recent emphasis on public safety has not prioritized the already-inadequate regulations that are meant to maintain a protective work environment, like the Food Service Sanitation Certificate required by the city of Chicago. This is why Eduardo is still cooking in a restaurant that has not been certified. When the city came to check up on his restaurant in June, the owners did not have a certificate. The inspectors let it slide then, Eduardo said, but “when the city reopens, they have to go out and get that certificate. They are still waiting.”
The Pandemic Could Change Lives and Livelihoods
This year has been a roller coaster for the nation’s undocumented community. On the plus side, the Supreme Court ruled to prevent a citizenship question from appearing on the 2020 census and upheld DACA. ICE will release migrant children in detention centers by mid-July. But in the White House, President Donald Trump extended the freeze on green cards and suspended H1-B, which allowed employers to temporary hire foreign workers (among other visa-holders) through the end of the year, a move that will impact immigrant Latinx workers who are already disproportionately affected by the COVID-19 pandemic.
In a recent report, the Migration Policy Institute found that unemployment rates for Latinx workers overall jumped 14% from January to April, with immigrant Latina women now facing 22% unemployment. This is not the first time Latinx workers have been uniquely affected by an economic crisis, according to Migration Policy Institute Senior Policy Analyst Julia Gelatt. “In the Great Recession, 2008-2009, Latinos did see an earlier increase in their unemployment,” she told the HPR. “And then they also saw an earlier recovery compared to other workers.”
If immigrants do not rebound quickly, however, undocumented essential workers will be left vulnerable to economic distress for the rest of this pandemic and beyond. While the coronavirus relief bill provided aid through stimulus checks, it excluded citizens and legal permanent residents from receiving payments if they were married to someone who files taxes with an Individual Taxpayer Identification Number. Instead, the Economic Impact Payments Fairness Act or the HEROES Act could make mixed immigration status households eligible for coronavirus relief bill payments.
Undocumented essential workers are also more vulnerable to coronavirus infection. High unemployment means many people losing their employer-related health insurance, Gelatt explained. Unauthorized immigrants cannot access Medicaid when they are unemployed, even if their incomes make them otherwise eligible. Though undocumented immigrants do have access to community health centers, care is often limited to preventative and primary care, forcing them to go into emergency rooms and foot the bill later. One way to ensure that undocumented immigrants are medically protected is for Congress to confirm that treatment for COVID-19 is treatment for an “emergency medical condition.”
Though these are small and technical remedies, the lack of a medical and financial safety net for undocumented essential workers proposes a dangerous world in with undocumented workers subject themselves to mistreatment in the workplace for fear of losing their jobs during an unprecedented crisis. These simple measures would go a long way in ensuring that undocumented workers receive the protections they require in the midst of this pandemic.
The Need
The bottom line is that undocumented essential workers face dangers from all sides every day they go to work: deportation, mistreatment, job loss, and of course, the coronavirus. This threatening reality calls into question the sincerity of society’s supposed appreciation for essential workers. If essential workers really are essential, then their immigration status should not undermine their workplace safety and job security. Undocumented essential workers deserve the same protections that authorized workers are naturally entitled to, and the only obstacles standing in their way are bureaucratic red tape and wavering political will.
Gelatt says it comes down to what the public thinks. Americans have a “real reluctance” to spend federal dollars on undocumented workers, she said. “There’s a sense that, if unauthorized immigrants aren’t supposed to be here, they weren’t given permission to come to the United States, and therefore, they shouldn’t benefit from any federal support.”
Gleeson agrees. “I think in a period of a recession, there’s one of two ways people can go,” she said. One involves people consolidating around a set of demands for basic protections from employers and the government and accepting nothing less. The other, she added, is a retreat that says, “‘I’m just trying to survive, and I don’t have the energy nor am I able to assume the risk of taking these demands.’”
The pandemic has been taxing enough without the lack of institutional support for workers. When compounded by a devastating recession, the very least the government can offer is a safe workplace for all essential workers, regardless of immigration status. The pandemic could propel a necessary first step towards the advancement of undocumented immigrants’ rights, a small symbol of protection that will last long after COVID-19 fades.
“With all the time I have been here, I have not been able to fix my immigration status,” Eduardo added when asked how being undocumented affects him while working in Slim’s kitchen. The fear of deportation is so exhausting, he longs for home just for a break from the uncertainty.
“And it’s a little difficult because sometimes, at work, you dream and think that they may come to take you away at any moment. Oh, you dream that you are in Mexico. You dream.”
Image source: Miroslav Slapka / Unsplash