Immigrant Workers in the United States Meat and Poultry Industry

Submission by Human Rights Watch

to the

Office of the United Nations High Commissioner for Human Rights

Committee on Migrant Workers

Day of General Discussion:

Protecting the rights of all migrant workers as a tool to enhance development

Geneva, Switzerland

15 December 2005

Immigrant Workers in the United States Meat and Poultry Industry

A. Introduction:

This submission addresses a key issue posed by the Committee in its Guidelines for the Day of Discussion: respect for human rights, including non-discrimination, and integration of the migrant worker in the host society.

This submission offers the case of immigrant workers in the meat and poultry industry in the United States as evidence of failure by the U.S. government to assure respect for workers’ human rights.

Immigrant workers make up the majority of the labor force in the U.S. meat and poultry industry. Along with immigrant counterparts in the agricultural sector, they literally feed the people of the United States. Despite this central role in U.S. economic life, immigrant workers are not accorded the rights, recognition and respect they deserve for their contributions. Instead of integration into the host society with full application of labor rights and labor standards, they are marginalized in a huge underclass laboring in substandard employment conditions.

This submission describes conditions of immigrant workers in the U.S. meat and poultry industry. Human Rights Watch asks the Commission’s Committee on Migrant Workers to add its voice to those of human rights advocates in the United States seeking full protection of the rights of workers in this industry.

B. Human Rights Standards and Immigrant Workers in the United States

Violations of immigrant workers’ rights arise at a fault line in United States human rights and labor rights policy. On the edge of this fault, millions of fearful, vulnerable non-citizens work in our nation’s most dangerous, dirty and demanding conditions. Abuses such as failure to prevent serious workplace injury and illness, denial of compensation to injured workers, interference with workers’ freedom of association, are all directly linked to the vulnerable immigration status of most workers in the meat and poultry industry and the willingness of employers to take advantage of that vulnerability. Although international human rights law mandates that all workers have basic rights that should be protected, including undocumented as well as documented workers, immigrant workers find that while their work is accepted, their rights are not.

The protections of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights apply to “all persons” including immigrant workers regardless of legal status. Beyond these basic principles, the UN’s International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) calls for “treatment not less favorable than that which applies to nationals of the State of employment” in pay, working conditions, and legal protections including rights to organize and bargain collectively.

The convention emphasizes that “States Parties shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of such irregularity.”

In two conventions dealing with migrant workers, the ILO proclaims the same principle of “treatment no less favorable than that which it applies to its own nationals” in the workplace, and the obligation “to respect the basic human rights of all migrant workers.”

The United States is failing to protect immigrant workers’ human rights in the meat and poultry industry. Despite the fact that immigrant workers are covered by national and international workplace rights standards and that many have permission to work in the United States, they often remain extremely vulnerable to employer coercion. Many documented workers cannot speak fluent English and are hesitant or afraid to navigate what they see as complex, costly procedures to vindicate their rights. A federal Occupational Safety and Health (OSHA) official said, “‘[Immigrant workers] just don’t know that they have rights and responsibilities,’ including the ability to complain against employers.”¹

Many legal immigrants have family or other personal relationships with undocumented relatives or friends whom they want to protect. Many work alongside undocumented coworkers and do not want to get them in trouble or be caught up in circumstances in which authorities might not carefully distinguish among them. Thus, immigrant workers lawfully working in the U.S. may be as reluctant or unable to vindicate their rights as undocumented workers

Vulnerability is more acute for undocumented workers who come into the United States without work authorization and are liable to immediate deportation if they are found out. Undocumented workers shrink from exercising rights of association or from seeking legal redress when their workplace rights are violated for fear of having their legal status discovered and being deported. For the same reason, they rarely testify in legal proceedings even when their testimony is essential to another worker or group of workers seeking legal remedies. Fully aware of workers’ fear and sure that they will not complain to labor law authorities or testify to back up a claim, employers have little incentive against violating their rights.²

Immigration status is directly related to health and safety on the job. An Associated Press investigative report published in March 2004 revealed that Mexican workers in the United States are 80 percent more likely to die in the workplace than U.S.-born workers, and nearly twice as likely as the rest of the immigrant population to die at work.³ Moreover, the rate of Mexican workers’ deaths at work is increasing dramatically. Just ten years ago, Mexican workers were 30 percent more likely to die on the job than U.S.-born workers, about the same as other immigrants.

Violation of immigrant workers’ rights is a national problem requiring a national policy response. The meat and poultry industry is not alone in its use of immigrant employees, nor should the industry be expected to unilaterally solve the problem. At the same time, however, the meat and poultry industry, like others, benefits from immigrant workers’ labor.⁴ The industry should do everything in the domain of its ample power to ensure that immigrant workers enjoy the same rights and benefits as those who are citizens.

C. Increasing Immigration in Meat and Poultry Plants

Millions of immigrant workers have entered the U.S. labor force in recent years. According to the most recent reports of the U.S. Census Bureau, about 12 percent of the U.S. population is foreign-born, more than 33 million people, compared with 8 percent of the population in 1990. More than half were from Latin America, and of these more than two-thirds came from Mexico and Central America.⁵

Among the fifty states, North Carolina, Arkansas, and Nebraska ranked first, fourth and seventh in the percent increase in immigrant residents between the 1990 and the 2000 census. North Carolina went from about 100,000 immigrants in 1990 to half a million today. Arkansas and Nebraska nearly tripled their immigrant populations.⁶

Latino workers are a majority in many meat and poultry plants. A university-based researcher who found work in a Tyson Foods poultry plant in Northwest Arkansas described the scene in a Tyson plant hiring office this way:⁷

I arrive at Tyson's Northwest Arkansas Job Center in Springdale at 10 in the morning. . . . Signs surrounding the secretary's desk say [in Spanish]: "Do not leave children unattended" and another warns: "Thank you for your interest in our company, Tyson Foods, but please bring your own interpreter."

As I turn to take a seat, I begin to understand her confusion. The secretary and I are the only Americans, the only white folk, and the only English speakers in the room. Spanish predominates, but is not the only foreign language. Lao is heard from a couple in the corner, and a threesome from the Marshall Islands are speaking a Polynesian language. Within less than two decades, the poultry industry has become a key site for "workers of the world" to come together in a region of the U.S.--the South--that received few foreign immigrants during the 20th century. Attracted by employment opportunities in the poultry industry, Latin Americans first began to enter northwest Arkansas in the late 1980s. Today, about three-quarters of plant labor forces are Latin American, with Southeast Asians and Marshallese accounting for a large percentage of the remaining workers. U.S.-born workers are few and far between.

As noted above, workers in the meatpacking industry hold a variety of immigration statuses, though many are undocumented and without permission to work. Estimates put the number of undocumented workers in the United States at more than eleven million.⁸ Nearly 60 percent of them are migrant workers from Mexico.⁹ Many have been in the country for years working long hours for low pay in demanding, dirty and dangerous jobs. They pay taxes, including Social Security taxes from which they will never benefit. They are setting down roots and having children who are U.S. citizens. However, because of their vulnerable immigration status, they live in shadow and fear, unable and afraid to seek protection of their human rights and their rights as workers.

Undocumented immigrants have come to the United States in massive numbers despite the 1986 Immigration Reform and Control Act (IRCA). IRCA granted amnesty to earlier arrivals, but also authorized measures to stop the flow of new undocumented immigrants by tightening border controls and adopting “employer sanctions” making it illegal for employers to hire undocumented workers.

To prevent discrimination against legal workers who “look foreign” or who “don’t speak English,” IRCA law requires employers to do no more than examine documents such as: a U.S. passport, certificate of U.S. citizenship, alien registration receipt card with photograph (commonly known as a “green card”), certificate of naturalization, unexpired employment authorization card, unexpired reentry permit, or unexpired refugee travel document. If the documents appear genuine on their face, employers can offer employment and must not request additional documentary proof of the applicant’s immigration status. Some of these documents are easy to reproduce and be genuine in appearance. The result is that undocumented workers find jobs and employers find needed workers without facing sanctions.

D. Effects on Workers’ Rights

The real-life consequences of workers’ immigration status spilled into every area investigated by Human Rights Watch – health and safety, workers’ compensation, and workers’ organizing rights. One Smithfield Foods worker told Human Rights Watch, “In the packing department everything is fast, fast (rapido, rapido). I was sick a lot from the cold and the damp. I never wanted to make a claim against the company because they fire people and they might call Immigration.”¹⁰

An Arkansas poultry worker told Human Rights Watch “They have us under threat [bajo amenaza] all the time. They know most of us are undocumented - probably two-thirds. All they care about is getting bodies into the plant. My supervisor said they say they’ll call the INS if we make trouble.¹¹

A worker at Nebraska Beef said, “[The top personnel manager] is a Mexican. He knows who is undocumented and who isn’t, and he holds that over us. He says ‘I know how you got here’ and ‘I know you don’t have papers but I’m going to take care of you.’ That just makes people afraid of crossing him.”¹²

Workers’ vulnerable immigration status often frustrates their right to workers’ compensation. Employees who file workers’ comp claims in contested cases (where the company claims an injury is not work-related) know they have a long battle ahead of them. Still, many are not prepared for the obstacles that arise. One Nebraska Beef worker recounted his perception:¹³

If you hurt your back or your shoulder, something they can’t see, you go see the nurse. She tells you there’s nothing wrong and gives you Tylenol and says go back to work. If you’re still hurting they send you to the company doctor. He says you didn’t hurt yourself in the plant, go back to work.

Then you go see a lawyer to file a claim. On the paper it says you have to sign your real name and swear to it. A lot of people stop right there. Their work name is not their real name. Then the word gets back into the plant, “they make you tell your real name.” So nobody wants to file even if they obviously get hurt in the plant.

Then you go to a hearing in front of a judge. The company lawyers ask you how you got the job, are you here legally. People are afraid to answer.

In any workplace injury or labor rights proceedings, questions about immigration status have no bearing on the merits of the workers’ claims and serve no legitimate purpose. An inquiry into workers’ documentation during a proceeding adjudicating their claims creates a dilemma for them. The questions are intimidating – and designed to be so. They force workers to choose between seeking legal recourse for wage and hour violations, health and safety violations, job discrimination, workplace injuries and illnesses, reprisals for union activity and other violations, on one hand, or exposing themselves, on the other hand, to dismissal and deportation by responding to such inquiries when they seek such recourse.

Not surprisingly, they have a chilling effect on workers’ willingness to file claims. Because many workers in the meat and poultry packing industry fear such questions, they refrain from pursuing legitimate claims and thus do not receive the medical care, rehabilitation support, and weekly income benefits that are due to them.

Immigrant Workers and Organizing at Nebraska Beef

One of the most telling accounts of the relationship between immigration status and workers’ rights came from Nebraska Beef workers interviewed by Human Rights Watch. A workers’ organizing effort was underway at Nebraska Beef in December 2000 when the then-Immigration and Naturalization Service (INS) raided the Nebraska Beef plant.¹⁴ The raid was part of its “Operation Vanguard,” the name given to 1999-2000 INS sweeps through Midwest meatpacking facilities to round up and deport undocumented workers.¹⁵

A worker still employed at Nebraska Beef told what happened during the raid:¹⁶

It was early morning when they stopped the lines. The supervisors told us all to go upstairs because the INS was here to check on people’s immigration status. There was a feeling of panic because so many of us are undocumented. We couldn’t get out; the doors were blocked. A bunch of us hid in the coolers for more than two hours. We were freezing in there. Some other people hid in other places in the plant. We were the lucky ones. They deported more than two hundred workers.

Seven of the employees detained in the Nebraska Beef raid were minors who used false documents showing they were older than 18. U.S. child labor laws prohibit work in meatpacking plants by anyone younger than 18. “They were obviously kids too young for the plant,” said an interviewed worker, “but the company didn’t care. They constantly needed bodies. Everything was production, production. Nothing else mattered.”¹⁷

Another worker told what happened in the days following the raid:¹⁸

The next day the company had us back at work with the lines going the same speed as before the raid. But we were missing more than two hundred workers on the lines. They said they’d fire us if we didn’t keep up. A bunch of us went up to the office and told the plant manager, either slow down the line or pay us more money. They gave us fifty cents more an hour and told us to get back to work. Then over the next week or two they fired the five people who spoke up for us at the meeting.

The December 2000 INS raid at Nebraska Beef resulted in more than two hundred workers being deported. Federal prosecutors indicted three top company managers in human resources, personnel and production departments for criminal conspiracy in a scheme to recruit and transport undocumented workers from Texas and from Mexico and for providing them false documents for work at Nebraska Beef. “We haven’t seen this type of scheme before,” said a federal government spokesperson, “not on this level.”¹⁹

The prosecutors’ case collapsed in 2002 when a federal judge dismissed the indictment. The judge dismissed the case not on the merits of the charges, but because the witnesses prosecutors needed to make their case against Nebraska Beef managers had all been deported. Without the testimony of workers actually caught up in the alleged labor smuggling scheme, prosecutors could not present sufficient evidence for a trial on the merits.²⁰

Immigrant Workers and Organizing at Smithfield Foods

The status of immigrant workers was also a key factor in workers’ organizing efforts at Smithfield Foods’ North Carolina hog processing plant. At the time of the union election in the Tar Heel plant in 1997, UFCW organizers estimated that 20 percent of the workers were immigrant Hispanic workers. "We never asked, and we tried to tell them it didn't matter, but the truth is that most of them were probably undocumented," said union representative Jeff Greene.²¹

Anti-union consultants told Latino workers that the union was dominated by black workers and that the organizing drive was really an effort by African-Americans – the majority of employees at the plant – to get rid of Latino workers and take all the jobs for black people. They told the reverse to black workers.

Smithfield supervisor Sherri Buffkin confirmed the systematic use of such tactics in connection with the earlier election in the Tar Heel plant. She told a congressional committee looking into organizing abuses:²²

Smithfield keeps Black and Latino employees virtually separated in the plant with the Black workers on the kill floor and the Latinos in the cut and conversion departments. Management hired a special outside consultant from California to run the anti-union campaign in Spanish for the Latinos who were seen as easy targets of manipulation because they could be threatened with immigration issues. The word was that black workers were going to be replaced with Latino workers because blacks were more favorable toward unions.

Smithfield’s Use of Police

In 2000, Smithfield Foods company secured “special police agency” status for its security force under North Carolina state law, the Company Police Act of 1991.²³ The Act empowers private entities to employ security officers with public police powers. The North Carolina Attorney General’s office is supposed to oversee these company police. They are empowered to carry weapons, make arrests, and pursue “suspects” off company property as long as an incident began on company property.

On November 14-15, 2003 a group of immigrant workers on Smithfield’s night shift cleaning crew spontaneously walked out of the plant to protest the dismissal of coworkers.²⁴ Smithfield police responded with assaults and arrests.

The NLRB regional office investigated workers’ charges that their rights were violated. The board’s investigation found that Smithfield “interfered with, restrained, and coerced its employees in the exercise of rights,” resulting in a July 2004 complaint setting the case for trial before an Administrative Law Judge in September 2004.²⁵

Specifically, the board’s investigation found merit in charges that the Smithfield and its contractor unlawfully:

• fired eight named employees and several more unnamed;

• caused employees to be falsely arrested;

• threatened employees with bodily harm;

• refused to pay employees for work performed;

• refused to pay employees their vacation benefits;

• threatened employees that they could lose their jobs if they selected the Union as their bargaining representative.

The NLRB was equally specific on violations by Smithfield’s Special Police, finding merit in charges that “Smithfield Packing Co., Inc. Police and Guards” unlawfully:

• physically assaulted employees exercising their rights;

• threatened employees with arrest by federal immigration authorities;

• falsely arrested employees exercising their rights.

In late 2003 and early 2004 Smithfield posted armed police throughout the Tar Heel plant after reporting telephoned bomb threats. On the heightened presence of police agents inside the plant, a worker told Human Rights Watch: ²⁶

The company says there is drug dealing and they are getting bomb threats but they did that just so they could fill the plant up with armed police and with plainclothes detectives posing as workers who just walk around and never do any work. It’s all part of the anti-union campaign to intimidate us and turn the plant into an armed camp. For those of us from Central America it is especially frightening because where we come from the police shoot trade unionists.

E. The Impact of the Hoffman Plastic Case on Workers’ Rights

Under international human rights and labor rights standards, all workers – whatever their immigration status – have the same basic rights to organize and to bargain collectively. Yet in 2002, the U.S. Supreme Court issued a decision in Hoffman Plastic Compounds v. NLRB that strips away from millions of undocumented workers in the United States their principal protection for and means of vindicating those rights.²⁷ The decision transformed a crisis in immigration policy into a human rights problem.

The Supreme Court’s 5-4 ruling held that an undocumented worker, because of his immigration status, was not entitled to back pay for lost wages after he was illegally fired for union organizing.²⁸ The five-justice majority said that immigration policy and labor law were in conflict, and that enforcing immigration law takes precedence over enforcing labor law. The four dissenting justices said there was not such a conflict and that the “backpay order will not interfere with the implementation of immigration policy. Rather, it reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent.”²⁹

The Hoffman decision and the continuing failure of the U. S. administration and Congress to enact legislation to correct such discrimination puts the United States squarely in violation of its obligations under the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work and under ILO Conventions 87 and 98.

The Hoffman decision has exacerbated fears in immigrant workers’ communities that they lack workplace rights and protections. Employers have made threats against workers, telling them of the decision and emphasizing that they can be dismissed for trade union organizing with no right to reinstatement or back pay. Workers have abandoned trade union organizing campaigns because of the fear instilled by the Hoffman decision. Employers have also sought to expand the scope of Hoffman, threatening workers with dismissal if they complain about minimum wage or overtime violations, health and safety violations, or any other claim before a government labor law enforcement agency.³⁰

Two authoritative international human rights bodies have examined the Hoffman ruling and concluded that conditioning remedies for freedom of association violations on immigration status violates workers’ human rights. First, in September 2003, the Inter-American Court of Human Rights issued an advisory opinion in a case filed by Mexico in the wake of the Hoffman decision. The IACHR held that undocumented workers are entitled to the same labor rights, including wages owed, protection from discrimination, protection for health and safety on the job, and back pay, as are citizens and those working lawfully in a country. The Inter-American Court said that despite their irregular status, “If undocumented workers are contracted to work, they immediately are entitled to the same rights as all workers…. This is of maximum importance, since one of the major problems that come from lack of immigration status is that workers without work permits are hired in unfavorable conditions, compared to other workers.”³¹

The IACHR specifically mentioned several workplace rights that it held must be guaranteed to migrant workers, regardless of their immigration status: ³²

In the case of migrant workers, there are certain rights that assume a fundamental importance and that nevertheless are frequently violated, including: the prohibition against forced labor, the prohibition and abolition of child labor, special attentions for women who work, rights that correspond to association and union freedom, collective bargaining, a just salary for work performed, social security, administrative and judicial guarantees, a reasonable workday length and in adequate labor conditions (safety and hygiene), rest, and back pay.

In a second major international tribunal ruling in November 2003, the International Labor Organization’s Committee on Freedom of Association issued a decision that the U.S. Supreme Court's Hoffman ruling violates international legal obligations to protect workers' organizing rights. The Committee concluded that "the remedial measures left to the NLRB in cases of illegal dismissals of undocumented workers are inadequate to ensure effective protection against acts of anti-union discrimination." The Committee recommended congressional action to bring U.S. law "into conformity with freedom of association principles, in full consultation with the social partners concerned, with the aim of ensuring effective protection for all workers against acts of anti-union discrimination in the wake of the Hoffman decision."³³

G. Recommendations to the U.S. Government

• Fashion a comprehensive new immigration policy to guarantee respect for all human and labor rights of non-citizen workers regardless of their immigration status.

• Press for federal immigration reforms that reduce the incidence of serious abuse of immigrant workers’ rights, including by creating a meaningful process by which undocumented workers can adjust their status and reducing the involvement of employers in verifying immigrants’ status, leaving the latter task to federal immigration authorities.

• Enact legislation prohibiting any inquiry into the immigration status and enforce existing provisions against retaliatory referrals to immigration authorities of workers seeking legal recourse or otherwise involved in matters related to complaints, investigations, or claims for violations of workplace rights under federal law.

• Adopt immigration reforms that reduce the incidence of serious abuse of immigrant workers’ rights, including by: creating a meaningful process by which undocumented workers can adjust their status and / or reducing the involvement of employers in verifying immigrants’ status, leaving the latter task to federal immigration authorities.

• Enact legislation to ensure equality of remedies for all workers who suffer workplace violations or seek to enforce workers’ rights, regardless of immigration status (rectifying the Supreme Court’s decision in the Hoffman Plastic Compounds case).

• Ensure that the legal prohibition against national origin discrimination, as well as document abuse and retaliation in the hiring or firing of authorized non-citizen workers is effectively enforced, including by providing non-citizen workers and their employers detailed information about their rights under this law.