Looking around the Home Depot parking lot on an early morning in May, Camilo notices faces of desperation among the few dozen workers. He listens, depending on the morning, to conversations about last night’s soccer game, or the latest gossip about the worker across the parking lot. Sometimes, there’s just silence, which is broken up as the workers flock towards a pick-up truck pulling into the lot. Two people might get in the truck and leave to complete a day’s labor. The rest go back to waiting. It is 5:30 a.m, and the morning has just started. The warming sun has not even set in and everyone is hopeful they will find work to be able to provide for their families—either just a few miles, or a few thousand miles away. Camilo, a migrant from Guatemala now living in Houston, Texas, is undocumented. He waits at the esquina (Spanish for corner) hopeful to earn money that is not available back in Guatemala.
Vulnerability manifests itself in different ways for undocumented immigrants in the United States. A migrant’s escape from economic stagnation or imminent danger back home may expose them to discrimination, mistreatment, deportation, or exploitation in the United States. For Camilo (a pseudonym) the prospect of earning more than was ever imaginable back in Guatemala has also meant multiple cases of wage-theft.
As states throughout the country begin to reopen their streets in an effort to kickstart local economies in the midst of the pandemic, undocumented workers are desperate to get back to work. The workers’ need to obtain any source of income, however, makes them vulnerable to instances of wage-theft. From February 2018 to March 2019, workers in the metropolitan area of Houston, Texas reported $1,360,082 in unpaid wages, according to a report by the Fe y Justicia Worker Center (having begun its reopening on May 1, 2020, Texas was one of the first states in the country to ease quarantine restrictions). The center is a workers’ rights community in Houston that helps mobilize campaigns, provides wage-theft case resolution services, and builds a peer-support network. From January 2020 to mid-May, the center received around 600 calls reporting safety and health complaints, discrimination and wage theft. From mid-March to mid-May, which coincides with the beginning of quarantine measures in Texas, the number of calls reporting wage-theft doubled. The center’s full annual report is expected to be released at the end of summer.
After hundreds of hopeful mornings waiting at esquinas, or street corners, Camilo doesn’t distinguish between most days. But he distinctly remembers a few days last year when his employers didn’t pay him. Like any other day, Camilo had woken at dawn in his apartment alongside his roommates, themselves heading to restaurants, landscaping yards, and other job sites typically populated by the undocumented.
Camilo went to stand on the outskirts of a Home Depot parking lot, where he and two other workers were picked up by a contractor at around 9am to go do construction work. After their work finished at 10:00 PM, each worker was paid $200 in cash. The following day, they discovered that the bills were counterfeit. 13 hours of work and not a penny to show for it. In another instance, Camilo was picked up by a contractor for a three-day job and was compensated $200 the first day. “We finished the second day and the contractor left us at [the supermarket] Fiesta and he only gave me $20. He said he would pay me the rest the following day. I came the next day and he didn’t pay me,” recounts Camilo. On yet another work day, he was promised $130, but only given $100. “We are in need,” said Camilo as he explained why he still heads to the Home Depot corner every morning, “We have to keep fighting.”
Like millions of other undocumented workers, Camilo continues to struggle to pay rent and bring food home. Given his undocumented status, Camilo is not eligible for federal aid, unemployment benefits, and is not able to transition jobs or anticipate future work the way a legal citizen would be able to. Wage-theft is an added obstacle that may be getting worse during the pandemic. And it’s not just construction workers who are exposed to exploitation, but also undocumented workers in restaurants, domestic work and janitorial work. They endure gender and racial discrimination, sexual harassment and assault, safety hazards ignored by employers and labor trafficking schemes.
With the coronavirus pandemic causing job shortages, undocumented workers are even more vulnerable to exploitation. The restaurants they used to work at have been closed for weeks and are just now gradually opening up. Employers who hire landscapers and domestic workers fear the spread of the virus, so they fire them. Since many undocumented workers currently have no source of income, some are jumping at any opportunity. And because that might be their only source of income for weeks to come, workers say they and their families will tolerate minor instances of exploitation just to survive another week. “Sometimes, work only covers food and part of the rent,” says Camilo. Employers are also struggling financially and are being forced to cut costs to endure the pandemic. As such, they are more likely to take advantage of workers’ undocumented status and exploit them in order to save money. Given the fear of deportation, many undocumented workers have few options in the face of such injustices.
In 2016, there were an estimated 500,000 undocumented immigrants in the Houston Metro Area, while the New York Metro Area topped around 1,100,000, according to the Pew Research Center. Five of the 20 metros with the largest unauthorized immigrant populations were in California while three were in Texas. These workers all face distinct socioeconomic and political fears, but they are all vulnerable to wage-theft.
What Protections Do Workers Have?
On a typical morning, starting at around 5:00 a.m., a contractor will drive up to construction workers mingling in the parking lot and offer them a day’s salary for their labor. When the workers accept, the verbal contract is binding by law. The same applies to undocumented immigrants in other professions. Most workers in any industry are protected by a verbal contract. However, there are some exceptions, and the verbal contract may be difficult to prove in court. This is why it is recommended for workers to record the initial conversation.
Further protections are included in federal laws. If undocumented workers complain about not being paid their full wages, employers threaten them with calling immigration authorities or firing them. Since workers are not always aware of their rights, they tolerate the threats and obey their employer. However, Camilo, alongside the other millions of undocumented immigrants, are federally protected by the Fair Labor Standards Act, regardless of immigration status.
All workers, documented or not, are entitled to the federal minimum wage of $7.25 per hour. Even if workers are paid on a weekly basis, the total pay divided by the number of hours worked must be at least equal to the minimum wage. Undocumented workers are also eligible for overtime pay. For every extra hour of work above 40 hours a week, a worker must be paid 1.5 times their hourly pay. “One thing that a lot of employers get told by their employers is that if they’re working on a salary basis they don’t get paid overtime. Or if they’re undocumented, they’re not eligible for overtime. All sort of different excuses,” said Duchoang Daniel Pham, an attorney from the Equal Justice Center (EJC) in Houston, a non-profit law firm that specializes in worker’s rights.
Pham explains, “Sometimes we see the employers not keep track of hours or even fake the hours. It’s actually the employer’s responsibility to keep track of their times.”
A lesser known method of wage-theft involves labor trafficking through the temporary seasonal guest worker H-2A agricultural and H-2B non-agricultural visa programs. In these cases, guest workers are promised high salaries, but once in the United States they are not paid the promised amount. The workers’ visas are only valid if they are employed, so if the workers complain then the employer can threaten to fire them, deeming them eligible for deportation.
Eligible countries for the H-2A or H-2B visa program are evaluated every year, and as of January 2020, workers from every Central American nation except Belize can apply. In the 2018 fiscal year, there were 10,842 H-2A, H-2B and H-2R (returning H-2B workers) admissions from Central American workers, out of 424,273 admissions. While the H-2A visa program has no annual cap, the H-2B visa program has been set to an annual cap of 66,000. Due to high demand for H-2B visas, on March 5th, 2020, the Department of Homeland Security made an additional 35,000 H-B visas available. 10,000 of those are reserved for workers from Honduras, Guatemala and El Salvador. The extra allotted visas were granted because each of the three nations signed their own individual Asylum Cooperative Agreement (ACA) with the United States in 2019. Earlier that year, the US had withdrawn monetary aid from the three nations to pressure their governments take measures to control the flow of migration. Once the nations cooperated and signed the ACAs, aid was reinstated. Sometimes referred to as Safe Third Country Agreements, these agreements allow the United States to send asylum seekers at the US-Mexico border to one of the three nations to apply for asylum there. Despite the ban on most visa processings at US embassies and consulates due to the pandemic, H-2 visas are still being processed.
Pham explains, “The big thing that stands in people’s way is lack of knowledge. Most people aren’t lawyers. We always want to encourage people to spread things by word of mouth. The other thing standing in people’s way is that they’re just afraid. It’s super understandable. There are just so many people who are afraid because of their status, who are afraid because they don’t want to lose their job. Having the courage and the knowledge together is really the only way that people will make it to our intake hotline.”
Little Recourse
Despite these protections, workers do not always receive the justice they deserve. Resolving a wage-theft case can take anywhere from a few weeks to over 18 months, and most times there’s no significant outcome. In cases where an employer is found guilty of wage-theft, the judge may order them to pay back the lost wages to the worker, though there are no repercussions for the employer. “When we do win the case, the judge just orders the employer to pay them. There’s no law that requires the judge to say, ‘I’m going to freeze your account and take the money out of your bank account’ No, It’s kind of just a slap in the hand,” said Jessica Lorena Rangel, Legal Director at the Fe y Justicia Worker Center.
In the event that an employer refuses to collaborate or is unavailable, a worker can begin gathering evidence to track them down. Phone numbers, addresses, names and pictures of license plates all aid in background checks and finding out the employer’s identity. The photograph that a worker takes of the worksite stores metadata such as the time and place of the photo, which can be used in court to prove that a worker was at the worksite if the employer denies ever hiring them.
Jessica notes that for every 10 cases Fe y Justicia takes up, only around four have the necessary evidence to present a case in court. Camilo never recovered any of his stolen wages. He is constantly in survival mode. A day of work means a few meals a week. A week of work helps pay the rent. After hours of intense labor, he just wants to relax and rest his body and mind for the next day. There’s little time to track someone down, gather evidence, and sue an exploitative employer. Often, the only option is to tolerate a deceitful employer and hope the next one will be more generous.
As of late May 2020, Camilo still stands at the Home Depot parking lot, waiting for a beaming pick-up truck to drive up. He says that last week, in mid-May, one of his friends from Guatemala also at the esquina was picked up for an eight hour job. Once the job was completed, he was never paid or given a ride back to Home Depot. He was left stranded at the worksite without compensation.“That’s how it is for us,” Camilo says, “What are we gonna do?”
