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Thousands of migrant children illegally working long hours in dangerous jobs have spurred the U.S. Department of Labor to order a crackdown on child labor law violations resulting from the surge in unaccompanied minors entering the United States. At the same time, at least 10 states have introduced or passed laws rolling back child labor protections. New legislation includes an Iowa law that allows 16-year-olds to serve alcohol, an Arkansas law that ends the requirement for age verification and a state-issued work permit for 14- and 15-year-olds, and a New Jersey law allowing 16-year-olds to work 50 hours a week in the summer.

Labor law expert Kate Andrias, Patricia D. and R. Paul Yetter Professor of Law, and Immigrants Rights Clinic Director Elora Mukherjee, Jerome L. Greene Clinical Professor of Law, discuss how the seemingly disparate issues of child labor and migration overlap, and the implications for children, workers, and democracy.

Kate Andrias: Child labor was a focus in the early part of the 20th century. Labor problems broadly were at the center of political debate: really low wages, rampant inequality, sweatshop conditions. But one of the major problems was children working in very, very dangerous conditions. Congress repeatedly tried to solve the problem through enacting various child labor laws, but the Supreme Court kept striking them down as unconstitutional. However, during the New Deal, the court switched its position on the ability of Congress to regulate labor. In 1938, Congress passed a set of labor laws that, among other things, put significant restrictions on the ability of children to work in order to avoid exploitative conditions for children. And for a period of time, I think child labor was less of a problem.

Were now seeing recurring patterns in the economy that existed earlier in our history. The data suggests that there has been a resurgence in child labor in recent years. In 2022, the Department of Labor (DOL) documented an increase of 37% over 2021 in the number of minors employed illegally. That was an increase of 283% from 2015. Its possible the DOL is catching more violations. But most people think its actually an increasing problem.

Elora Mukherjee: During the Trump administration, immigrant children were being held in federal custody for weeks, months, sometimes more than a year. Procedural requirements had been put in place by the Trump administration that made it harder for the Office of Refugee Resettlement to release children to appropriately vetted sponsors.

When the Biden administration came to office, there was tremendous pressure to ensure that children were promptly released from federal immigration custody. As a result of this effort to speed up their release, there has not been, in many instances, appropriate vetting of the sponsors to whom children are released to ensure that the sponsors actually have the best interests of the children in mind.

Trafficking is not too strong a word. Some of the individuals receiving these children from federal immigration custody are traffickers. They are engaged in human smuggling and the exploitation of children. And they are sometimes working with the coyotes, the smugglers who brought the children to the United States.

Some of the fault certainly lies with the federal government. The fault also lies with the push-and-pull factors that lead children to migrate to the United States. Many of the countries where child migrants are coming from are effectively failed states. The governments cannot provide basic security to children and to large swaths of the population. And the children who are being sent north to the United States feel a tremendous responsibility to try to put food on the table for their parents or siblings. Often, unfortunately, they need to pay back smugglers as well. So the children are facing enormous pressures. They need money.

Our country has become increasingly polarized over immigration, and there has been rising xenophobia, racism, and a view that certain people, especially undocumented immigrants, are disposable. Their lives, their dignity, their value, their childhoodit doesn't matter. And there will be no one to hold the big corporations accountable if theyre hiring children, especially undocumented children.

Andrias: Child labor laws have always allowed children to do some work. If youre 14, if youre 16, you can babysit, you can work in a retail job a few hours on the weekends. The idea behind child labor laws is to make sure that the kind of work that children engage in is a supplement to their education. What we have going on right now is much more than that. Its children working as roofers. Its children working on farms. Its children working in dangerous factories with toxic chemicals. Its children working very long hours. Its a particular problem for migrant children and undocumented children, but its not limited to those children.

There are rampant violations of the law. Those exist in part because of the underlying conditions Elora was describing. But they also exist because the Department of Labor is woefully underfunded and doesnt have the resources to enforce the law.

Andrias: There are efforts in a number of states to roll back limitations on how much children can work. So, for example, a bill introduced in Iowa would allow 14-year-olds to work in meatpacking plants and would indemnify the plants against civil liability for many injuries that occur. Its an effort to enable big corporations to hire children and to have them work in dangerous conditions and not be subject to liability. A lot of the other bills expand the number of hours that children can work, the kinds of work they can do, and also how young children can be when they start working.

Observers often point to the tight labor market. But we have had other tight labor markets without the same effort to permit child labor and without widespread problems of rampant illegal child labor and exploitation. A bigger factor is that working people have very little political power right now. Big corporations have a lot of influence in state legislatures and also in Congress. If you poll people about an increase in the minimum wage or forming unions or stronger protections for labor, people say yes, they want all of those things. And yet that doesn't translate into legislation or effective enforcement because big corporations have an outsized influence in politics. Theres a concerted effort on the part of businesses to change the laws to make it easier to exploit labor. And there isnt a lot of ability among workers to prevent that.

Whats really driving this is a desire of corporations to pay less for labor. If pay were higher and conditions were better, there would likely be enough adults willing and available to do the work. The problem is that companies would like to make more profits, pay workers less, and they are able to do that if they exploit migrant children or other children who don't have alternatives.

Mukherjee: The reform that is most likely to actually be implemented is increased vetting of the sponsor before a child is released from federal immigration custody. We have all by now heard the horror stories of a single sponsor who has taken custody of multiple children to whom the sponsor has no familial connection. I think were going to see a genuine effort by the Biden administration to increase the vetting before children are released. Now, on the flip side, what I hope we dont see is a return to the Trump era, where children were kept in federal immigration custody for prolonged periods of time and in inhumane and degrading conditions that led to the deaths of multiple children.

Second, and more pressing, is the need for comprehensive immigration reform. The system that we currently have perpetuates family separations. There have not been sufficient changes to that system that would enable migrant children who come to the United States to focus primarily on school.

Andrias: The Department of Labor has committed to ramping up enforcement. It has created a new interagency task force to try to handle the problem of child labor in a more coordinated way. And its trying to do more data-driven enforcement, where it prioritizes enforcement resources in industries that are particularly in need of such enforcement. The problem is that without significantly more funding, theres only so much progress that effective and committed administrators can make.

We also need comprehensive labor law reform. Our labor laws are woefully outdated. Not only is there a problem of extreme underenforcement, but also penalties are so low that it often makes economic sense for employers to violate the law. That is a serious problem that needs statutory reform. In addition, we need higher minimum wages, things like paid time off when you have a baby or when youre ill, and a stronger right to organize unions. Because if workers lack power at work, if they lack an organization through which they can have a voice, no matter how many labor enforcers are hired at the federal level, the violations occur.

Mukherjee: After the lifting of the Title 42 expulsion order, there have been a number of important developments. On one hand, a number of conservative attorneys general have filed a federal lawsuit in Florida, trying to enjoin the federal government from lifting Title 42. That case remains pending. On the other hand, on the other side of the country, in California, immigrants rights groups have filed a lawsuit seeking a preliminary injunction that the new Title 8 regulations that were announced in May should be enjoined. Those Title 8 regulations effectively end asylum in the United States, with the exception of unaccompanied minors, who will continue to be allowed to cross into the United States. The effect of this change will be increased family separations, with children being allowed to enter the United States without their parents or primary caregivers. That will make those children even more vulnerable to exploitation than they would have been otherwise.

Andrias: One of the challenges with both immigration and labor law governing the right to unionize is that, because of preemption doctrine, reforming both of those bodies of law has to happen at the federal level. And therefore, I think the possibility for reform right now is pretty low, which is depressing.

On the other hand, there is exciting organizing work occurring at the state and local level. Thats one place where I see shoots of hope. I would point to the recent efforts of Starbucks workers to organize and the efforts of the writers in Hollywood to try to affect how AI is used. Theres been a real upsurge in organizing across both low-wage industries and more professional workers.

Theres also some important legislative reform occurring in states where theres sufficient political power to do so on issues that are not preempted by federal law. New York state recently changed its laws to make it easier for farmworkers to organize. There are a number of efforts to protect domestic workers through state and local legislation. There are efforts to raise minimum wages, to pass scheduling protections, and to limit the ability of companies to use electronic monitoring of workers in numerous states.

Finally, there are some promising administrative efforts within the federal government. The effort at the Federal Trade Commission to prohibit companies from imposing on low-wage workers noncompete agreements is an example. At the National Labor Relations Board, the general counsel is also seeking to limit noncompete agreements and undertaking other reforms that would significantly protectworkers democratic rights. The question will be how those fare in the courts.

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Professors Kate Andrias and Elora Mukherjee on the Crisis in Child ... - Columbia Law School

(The Center Square) The Chicago City Council and Mayor Brandon Johnson heard Wednesday from Chicago residents upset about the influx of migrants in their communities and the resources that have been allocated to assist them.

Chicago started moving some of the foreign nationals bused from the southern border to other communities throughout the city. However, some believe not enough is being done to help those whove been lived in those neighborhoods for generations.

Last month the Chicago city council appropriated $51 million for migrant services. The money comes from opioid and vaping settlement funds. However, it is only expected to last a few months.

More than 10,000 migrants have arrived in Chicago over the past nine months from the southern border.

On Wednesday, residents of Chicago attended the meeting, and several used their time to speak out against the financial resources for the migrants.

George Blakemore voiced his frustration with the handling of the situation by the city council.

Cant you see what is going on here, with these illegal immigrants and our so-called elected officials who vote against our interests? asked Blakemoore. We are not going to tell them [migrants] to go. Maybe some of you all need to go.

Last week, state Rep. La Shawn Ford, D-Chicago, said current city residents feel underserved.

What people are feeling is that the people who have been in these neighborhoods for generations, they have been treated inhumanely by the same government that is making efforts to provide good care to the asylum seekers, Ford told The Center Square.

Jessica Jackson told the council that she and others feel tricked by the handling of the migrant situation.

In the words of Malcolm X, we have been hoodwinked, run amok, bamboozled, by sitting here thinking that these Black politicians are helping us, Jackson said.

Gov. J.B. Pritzker has sought the help of the federal government to provide resources for Chicago and the migrants, which includes jobs.

I have been imploring the White House and the federal government to do two things. One is we need comprehensive immigration reform, Pritzker said. In the meantime, we ought to be allowing at least the asylum seekers that came here in the latter half of last year to now get work permits. We have jobs available for them.

The state government will also provide $43 million in taxpayer funding to care for the migrants as a part of its fiscal 2024 budget.

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Chicago residents speak out against amount of resources going to ... - Heartlander News

Coloradans are about to enjoy the bounty of the summer: Rocky Ford melons, Palisade peaches, and Olathe sweet corn.

But the farmers who grow that produce have a big problem. There just arent enough workers.

I cannot find domestic workers who want to work seasonally at any price, said David Harold of the Tuxedo Corn Company in Olathe. He and his father grow a variety of crops on their 1,300-plus acre farm, including the sweet corn thats put Olathe on the map.

The tender kernels on those cobs require some delicate handling. In fact, those cobs have to be hand-picked. And the lack of labor is a constant worry.

I dont see how we will be able to continue to operate how we have traditionally operated, said Harold. But what scares me is not operating. Not being able to continue.

The problem may be especially acute with a crop like sweet corn, but across the state, agricultural producers are struggling to find people to do the hard work of planting, weeding and harvesting. Its a problem many believe only Congress can fix, if it can get past long-standing roadblocks.

Like many other farmers, Harold relies on the H-2A visa program to bring in temporary agricultural workers. Some have been coming to work for Tuxedo Corn since he was a child.

For them its relatively great pay. And for us its a relatively good deal because we are getting access to a labor pool that if we had to use domestic labor might cost us five times as much, said Harold.

The federal government sets the minimum pay rate for H-2A workers in each state, to prevent farmers from offering such low wages that they automatically exclude domestic workers. In Colorado, that rate is just under $17 dollars an hour.

Still, Harold said the program is hard to use. The applications are cumbersome, farmers must provide temporary housing, and sometimes the visas are late, causing extra stress and headaches.

In addition to addressing those problems, farmers also want Congress to make some bigger tweaks, such as allowing some visa holders to stay year-round and changing how quickly minimum pay rates rise.

Even for the workers, the H-2A program has some downsides. The biggest one for many is that they can spend decades working in the country, without any hope of being able to permanently make it their home, at least not legally.

Juan Francisco Chavez Santana from Chihuahua, Mexico, is one of those temporary agricultural workers. Hes worked in Paonia for five seasons now, spending eight months at a time away from his wife and three daughters.

My motivation is for the family, to get them ahead, he said in Spanish. And he added, hed be interested in a pathway to citizenship. Unlike the H-2A visa, permanent residency would mean his family would be able to join him.

It would be a way to be closer together as a family, he said.

The H-2A program has also at times left visa holders vulnerable to abuse. Most recently in Georgia, where dozens of people were indicted for human trafficking, allegedly defrauding the government out of thousands of H-2A visas while exploiting, threatening and abusing the workers.

Farm worker advocates arent investing a lot of effort into reforming the H-2A program, but do see supporting changes as a way to get leverage on an issue they see as more pressing: protecting workers who are here without visas.

While the H-2A program brings in tens of thousands of workers each year, its estimated that almost half of the agricultural workforce in America is undocumented. Advocates want to see them protected from deportation and, most importantly, given a chance for legal status. They argue its only fair compensation for helping secure the nations food supply.

If you feed America, you deserve the right to stay in America, said Antonio De Loera-Brust with United Farm Workers, the union that represents agricultural labor. We believe that the undocumented farm workers who have been the backbone of the American agricultural industry for many decades deserve the chance to obtain legal status.

One of those undocumented workers is Marisela Juarez, an undocumented worker from Georgia, who has spent the past 15 years in the U.S.

We know that we are feeding millions of people. Even though we dont know them, its a way we feel connected with them, said Juarez at a press conference at the U.S. Capitol in December, where she and the UFW urged lawmakers to pass a compromise bill that would reform the H-2A program and provide a pathway to legal status.

If you happen to eat anything today, it's thanks to farm workers. This is why I think it's just to have a legalization for farm workers, she went on.

To find a solution to the labor problem to either open up the H-2A program to allow more workers or to give guest workers hope for permanent residency would require Congress to take action on an issue it's long struggled to deal with immigration.

While comprehensive immigration reform might be the hottest of political hot potatoes, lawmakers have shown little interest in tackling even this limited aspect of the issue.

In the last Congress, Colorado Sen. Michael Bennet tried to get the Senate to come to agreement on the Farmworker Modernization Act a bill that passed the Democratic controlled House twice. It would have expanded the H-2A visas to allow some workers to stay in the country year-round. It also offered protections for undocumented farm workers.

These people literally are breaking their backs to put food on the table of the American people. And I think that we should approach this negotiation with a generous view about their contribution to our country, Bennet said.

The Farmworker Modernization Act passed the Democratic-controlled House twice, but stalled in the Senate.

With little indication that a now-divided Congress wants to take up the policy again, some producers are hoping that perhaps their concerns could be addressed by one of few must-past bills out there the Farm Bill.

Tuxedo Corns Harold brought that idea up with Bennet at a recent Farm Bill listening session on the Western Slope.

I asked him, Can we work on labor in the Farm Bill? I mean, traditionally, I don't think it ever has been done, recalled Harold. The response was, Yes, but

While he may not have wanted to get Harolds hopes up, Bennet, who serves on the Agriculture Committee, has looked into whether the issue would fit the purview of the Farm Bill, but said hes still waiting on a firm answer from the Senate Parliamentarian.

If there is a way to address this in the Farm Bill, to discuss it in the Farm Bill, to have a debate about this, I certainly would love it for us to do it. Because even if ultimately it cant be addressed there, we have to keep this issue in front of the American people, he said.

Republican Rep. Dan Newhouse of Washington is less sanguine about this approach. Hes been a leader on the issue of agricultural labor in Congress and has been willing to break with his party to support compromises. But he doesnt think the Farm Bill is the right vehicle to get something done.

[The] Farm Bill's already difficult to get passed This might even make it more complicated, he said, noting that the Judiciary Committees are the proper place to bring up immigration policies.

The Republican House has passed a border security bill that includes provisions to study the agricultural labor issue, as well as a Sense of Congress basically nonbinding guidance that the country, in using the E-Verify system to check for undocumented workers, should consider and address how it would impact the nations agricultural workforce.

As a farmer himself, Newhouse knows the importance of solving the agricultural labor issue. But he said in the end, public pressure might be the only thing that will push lawmakers to finally act.

If you can't find the labor, it doesn't matter what it costs, the work is not gonna get done. People have to make sure that members of Congress understand how serious this is, he said.

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With shortage of local labor, farmers and advocates want Congress ... - Colorado Public Radio

Americans take their freedoms, social and financial, for granted. In a land of plenty, were all upset about something these days. Meanwhile, according to a recent U.S. Department of Homeland Security study, there are some 400,000 undocumented people in Georgia, in plain view yet invisible, largely migrant workers in landscaping, construction and agriculture, mostly Hispanic and from Mexico and Central America.

My experience with them comes from legal representation Im a Spanish-speaking gringo. My Colombian-born wife, with her education and awareness, strictly adhered to the immigration laws. Many of my criminal case clients, by contrast, cross the wastes into Texas or Arizona on foot they tell me of encountering human bones in the desert. For various reasons repulsive to our sense of freedom, including overwhelming corruption and poverty, they are desperate to leave their countries.

Our state courts do a noble job of handling this incoming chaos. The undocumented, simple as their objectives typically are (to work, send money home and live a better life), tend to create chaos.

Its not that they overburden the courts in Cobb, Cherokee, or Forsyth, the counties where I work. They hardly commit a majority of crimes usually domestic violence or alcohol-related incidents but a handful are dangerous. A few drug mules, but the scariest cartel stuff does not occur in Georgia. Gangbangers are usually young American citizens making that choice migrants, on the other hand, have fewer options.

My courtrooms provide the same treatment to all. In my public defender work, in addition to our native crooks, Im paid to represent the undocumented. Their distress sometimes stems from possible deportation, although not all crimes are deportable. For sure, the persistent ones tend to find a way back up here.

Truly, what sets the undocumented apart in the legal process is the sense of alienation, a cultural gap that can be seen as disruptive to the American idea of order. Their cases are no more difficult than those of our citizens, but the mismatch remains all the more striking within the delicate balances of the justice system. Certainly, our interpreters well render English words into Spanish, but so many undocumented people stumble at the due process rights during a plea, not from resistance but from confusion over the concepts.

Years-long probated sentences are pronounced upon people and then made pointless by immediate deportation, especially in counties which hold them for immigration authorities to pick up. Unable to bond out without full cash payment (bail bondsmen dont want a forfeiture), some finally plead out after months and months of waiting.

I try to anticipate the effects of a guilty plea on a clients immigration status, but it seems to change over time. While the undocumented serve their sentence in prison before deportation for heavy crimes, misdemeanors dont have clear outcomes. Will they be released directly from county? Or sent elsewhere and released? Or sent to an ICE detention center in South Georgia? For a hefty sum, an immigration lawyer might find grounds for federal relief, but thats a long shot. Keep in mind, my clients tend to be uneducated and poor, surrounded by other undocumented people who cant sponsor them.

Couple their background with their living conditions no credentials means paying in cash, basically off the grid, as a rootless people. My efforts to investigate a crime can result in a dwellings residents scattering or hiding, even when Im trying to help a family member. Im sure its the same for the cops.

Be clear Im not shilling for anyone. Criminals are criminals, no matter what status. From my vantage point, our counties go to great lengths to protect the rights of folks already violating federal law. And most undocumented folks arent breaking state laws they are toiling outside in the Georgia summer heat or at the chicken plant. As always, Im willing to defend people in trouble.

Still, the problem of a culturally distinct and rootless people gnaws at the fabric of society. The federal government, in its division, has really dropped the ball. The last promising bill, the proposed Comprehensive Enforcement and Immigration Reform Act of 2007, a bipartisan effort under President George W. Bush, did not make it through Congress. The bills combination of an eventual path to citizenship and border enforcement is beyond us in todays political climate, simply reinforcing the problem.

And it may be that any federal legislation to remedy all this is truly beyond us now. Ancient Rome in its growing disorder saw an influx of Germanic people, many soldiers, coming into the Empire, foreigners tasked with defending an order not their own. How are we so different? For so many of our undocumented people, in my experience, do want to belong here.

Doing justice by them at a local level might not move the ball at a higher level, but it is our best hope for now.

Douglas D. Ford is a commercial litigation and criminal defense attorney in metro Atlanta.

Read more from the original source:
Opinion: Lawyer reflects on undocumented people in our legal system - The Atlanta Journal Constitution

[Below is the abstract of an article appearing in Vol. 48, No. 1, of theJournal of College and University Law. It is based on a November 2022 CIS report.]

A notable group of immigration law professors has assured California that it can allow its State universities to hire aliens not authorized to work under federal law, concluding that the Immigration Reform and Control Act of 1986s prohibition on hiring undocumented persons [known as employer sanctions] does not bind state government entities. They contend that Congress cannot intrude on the States historic police power to regulate employment without being explicit about doing so, and IRCA does not explicitly spell out that employer sanctions apply to States as employers. The professors also contend that the States constitutional right to select their elected and non-elected leaders allows them to hire unauthorized aliens as professors, regardless of any congressional command to the contrary.

I conclude that the professors first argument is incorrect because 1) Congress clearly intended employer sanctions to apply to all employers, 2) Congress had good reason for not spelling out application to the States, 3) Congress can evidence its clear and manifest purpose without the need for such a spelling out, and 4) in any case, employer sanctions are unlikely to be the sort of mandate that require any spelling out in the first place.

I further conclude that the professors second argument may possibly be correctto the extent employer sanctions were applied to State policy-making officials. However, the right of State universities to hire unauthorized aliens as professors would have to be extrapolated from Supreme Court rulings that States have the right to impose citizenship tests for positions such as public school teachers. This is a bridge too far. It is not clear that courts would agree to the obverse of the principlethat States have a right to expand eligibility to non-citizens, even to aliens unauthorized to work in the United States. And even if courts were to agree in the context of public school teachers, it is unlikely that they would equate professors with school teachers as performing a role that goes to the heart of representative government.

[Read the whole article at theJournal of College and University Law.]

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California Dreamin': Can State Universities Legally Hire Non-Work ... - Immigration Blog