Carbon Consciousness & Action

Archive for the month “May, 2011”

Arizona Licensing Law Unlikely to Curb Illegal Immigration

The Supreme Court on Thursday in Chamber of Commerce v. Whiting upheld Arizona’s law which revokes the business licenses of companies that employ illegal aliens. Arizona’s law, likely to be advanced in other states by legislators wanting to appear to “do something about illegal immigration” is unlikely to significantly slow the employment of unauthorized workers in many sectors of the economy.

Most large businesses already contract with third party contractors whose core competency is stringing together still smaller contractors who directly employ illegal aliens. The smaller contractors, many run by illegal aliens themselves, provide the cover that the larger businesses need, so that they can obtain the benefit of low-cost illegal workers without putting their own businesses at risk.

I have represented hundreds of illegal alien workers who have gone weeks or months without being paid their wages by the lower-level labor contractors, even though the work that they do is really for major national corporations. This work includes cleaning the floors and tending the warehouses of the nation’s largest supermarket chains, framing huge tracts of new houses, and digging trenches, work that was performed a generation ago by unionized employees working directly for the national companies that need the work done.

The smallest labor contractors often don’t pay legally-mandated employment taxes and premiums to the government, nor do they pay overtime to their workers, which already gives them a large cost advantage over law-abiding enterprises. In the rare event that downsized state and local government agencies learn about the workers and their non-payment of taxes and insurance premiums, the lower-level contractors get shut down, only to reopen again under other names. Thus, the threat of losing a business license will do little to deter the large national businesses working with labor contractors hiring illegal aliens, because their business licenses certainly won’t be on the line.

Illegal immigrant workers are largely unable to defend themselves, and live in perpetual fear that complaining to the authorities will result in them losing their jobs and getting turned over to immigration. I am handling a case now where the employer, caught underpaying an employee, decided to run a “e-verify” on an employee that they had known was illegal for three years, simply as a pretext for firing him and sending a message to the other workers about what happens to those who assert their rights.

The surge in hiring of illegal immigrants is in part attributable to the decline of labor unions and the unionized workforce. Unions had a strong vested interest in knowing who was on the job, and assuring that the pay and work conditions were consistent with their labor contracts. Companies were once unable to avoid paying union wages by hiring outside contractors. Now that the unions are gone, no one pays attention to who the workers are, or how much they get paid. Workers now have few avenues to stand up to violations of employment laws, and weakened government agencies have essentially been sidelined.

The unskilled American worker has seen real wages fall because of a huge influx of unauthorized workers and the decline of unions. Most politicians offer workers little more than a few hundred dollars a year in tax cuts and empty rhetoric and ineffective policies aimed at illegal aliens. A long-term plan of organizing the labor force through stronger labor unions and a rationalized immigration policy will result in higher wages and better conditions for most working Americans.

The end of consumer protection?

Watch out, American consumers.  The sheriffs enforcing consumer protection laws have been grievously wounded, and cable, cell phone, rental car, airlines, and other national corporations are poised to pelt us with a hail of undisclosed fees and charges.  Who shot the sheriffs?  Legislatures cutting the budgets of state and federal consumer protection agencies, and most recently, the U.S. Supreme Court, with its recent 5-4 decision on April 27, 2011 in AT&T Mobility v. Concepcion which will effectively eliminate consumer class actions.

Consumer protection in the U.S. has historically rested on a three-legged stool.   One leg was federal consumer protection agencies such as the Federal Trade Commission.  The second leg was state consumer protection agencies and attorneys generals offices, and the third was private class action lawsuits.

As described by blogger Mitch Lipka, the severe cutting of state budgets has resulted in the shuttering of state consumer protection agencies in Nevada and other states.   Consumers, who once relied on state agencies to protect them, are now finding that their state consumer protection agencies are shut down or drastically cut back by business friendly legislatures.  On the federal level, the Federal Trade Commission, despite facing a 400% increase in consumer complaints since 2001, is working with reduced enforcement budgets.  (One bright spot in this bleak picture—the new Consumer Financial Protection Bureau, which will regulate mortgages, credit cards, and other financial products.)

Class action lawsuits have been the third avenue where cheated people can obtain compensation and deter wrongdoing.   Now, thanks to the Concepcion decision, the non-negotiated contracts (i.e. “click here” to agree to the following 40 pages of fine print terms and conditions) required to open a bank account, rent a car, or purchase products online will now contain an enforceable arbitration clause banning class actions.  Many courts had formerly refused to enforce arbitration and anti-class action provisions in consumer contracts. Consumers who have been cheated for less than $5,000 will find it nearly impossible to find an attorney to take their case, because there is no way an attorney can make money doing so.  As Justice Breyer stated in his dissent in Concepcion,  “[O]nly a lunatic or a fanatic sues for $30.”

Concepcion will radically change the decision-making process for corporations considering dishonest schemes.   A deceptive practice which might rake in short term profits but which formerly could have resulted in expensive litigation can now be pursued with virtual impunity.  American consumers can expect a new wave of hidden fees, deceptive charges, and misleading advertising as companies exploit the opportunities presented by the removal of legal constraints.

Citizens seeking to re-institute adequate levels of consumer protection have four main lines of attack.   We must pressure to Congress and state legislatures to provide adequate budgets and staffing for consumer protection agencies.  Second, we need to push for amendment of the Federal Arbitration Act to legislative overturn the Concepcion decision.  Third, we must use internet communities such as Facebook and Yelp to expose fraudulent and deceptive practices wherever possible, so at least companies that engage in deceptive practices will find their brands tarnished.  Finally, we must channel the anger of people ripped off by deceptive and hidden fees and charges against the politicians and Supreme Court Justices who took out the Sheriffs, and urge them to elect new representatives that will put law enforcement back on the beat.

Staying in the Streets

A few hundred protestors toppled the 30 year-old Mubarak regime in less than three weeks.

Those who started the protests took big risks.  They faced the same police torture chambers that earlier anti-government protestors had endured.  They persevered.  Those who came out a few days later faced the loss of their jobs and status in the society, and didn’t go home when the police and army told them to.  By Thursday of last week, Mubarak brought his thugs to beat the protestors, but the protestors stayed in the streets.  When Mubarak announced yesterday that he would remain in office,    they stayed in the streets in ever greater numbers, until the government was finally toppled.  They are now singing and dancing in the streets, victorious.

Given that the army is now in command, they would be fools to leave the streets now.  They need to stay in the streets until their demands for major restructuring social restructuring and democratic reforms are met, and until a free election occurs.

What does the Egyptian experience mean for us?

First, our “intractable” social and economic problems are really not that intractable. We sometimes convince ourselves that we can’t achieve major progressive reforms to our energy, gun, civil justice, immigration, or other  policies.  We tell ourselves that filibustering Senators, a conservative Supreme Court, and a new and reactionary House majority backed by now-uncontrolled rivers of corporate cash are obstacles too large to overcome.    However, Egyptians long-suppressed by torture chambers, giant police and security services, and government-controlled media were able to topple their regime in three weeks.  They did it by simplycoming together and staying for several weeks in ever larger protests.

Who doubts that tens and hundreds of thousands of protestors gathering for three weeks consistently in streets and public squares across the country to protest the domination of our oil, insurance, weapons and banking oligarchs would have a huge impact?   After all, a few thousand tea party activists in each state had a huge influence on the last election.

Given what the Egyptians faced, the obstacles to major social and economic change in our society are relatively minor.  We can communicate quickly and freely with one another via the internet.  We can gather in large groups without fear of violence or reprisal.  We do not have our leaders jailed.  Our political system is responsive to large, well-organized groups of voters.

Then what are the obstacles we face?  Apathy.  Energies focused narrowly on doing our jobs and making money.  Ignorance of the issues.   Disorganization.  These were the precise problems that held the Egyptians back for decades, probably even more than the secret police.

The election of Obama was our closest analogue to the Egyptian revolution.  We were furious with what we felt was an undemocratic Bush regime.  We wanted change.   Tens of thousands of volunteers dedicated their energies in the Fall of 2008 to electing Obama.  When Obama was elected,  we went home.

Going home was our mistake.  Our networks of activists withered, along with our political energies.  As a result, we were lucky to get watered-down health care and financial reform.  There has been no change to our archaic, irresponsible, and dangerous energy policy. No immigration reform.  The tax and budget situation is worse.  Our country is still laboring under the burden of profound misallocation of resources.

After the election, the entrenched powers quickly regrouped, deftly manipulating their financial strength and popular economic frustration and dissatisfaction with the status quo into support for candidates who support policies favored by our economic oligarchs.  They engineered a takeover of the House, and are gearing up to take back the presidency and Senate.

The 2012 election season will spark a revival of political interest.  We need to capitalize on it, not only to re-elect Obama and a progressive Congress, but also to establish networks capable of maintaining the energy and focus on the key issues: good health care for all, converting to a fossil-free economy, narrowing of the gap between rich and poor, immigration reform, and the right of workers to organize freely.   The question isn’t whether we can make these changes.  The question is whether we want them enough to stay in the streets until we do make these changes.

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