Sign up to get<\/a> story alerts.<\/p>\n<\/aside>\nWhile his immigration status hasn\u2019t posed a significant roadblock to his continued employment, it has exposed him to the risks that come with working in the shadows. He and his fellow custodians have repeatedly been paid less than minimum wage and worked six or seven days a week with no overtime pay, according to court records and Texas Tribune interviews. In some cases, they accumulated those overtime hours when Target managers would lock them in the store for extra tasks.<\/p>\n
\u201cWe’ve realized that [employers] prefer us for being undocumented because we just keep our heads down to get jobs,\u201d Chunco said. \u201c[We] can’t afford to complain. They take advantage of us being undocumented.\u201d<\/p>\n
What Chunco describes is a window into an expansive underground labor market in which illegal hiring is widespread, even among some of the biggest names in American business. Yet the risk of running afoul of immigration authorities is low. Employers skirt culpability by accepting fake documents that they are not legally required to verify, misclassifying workers as independent contractors or subcontracting to separate businesses that do the actual hiring \u2014 all while claiming they did what the law requires to verify their workers\u2019 employment authorization.<\/p>\n
It\u2019s that \u201cdon\u2019t ask, don\u2019t tell\u201d system that allows employers to benefit from cheap immigrant labor. The same shadows under which undocumented immigrants are hired can also obscure the further exploitation they often endure.<\/p>\n
\u201cThe fact that they’re in the shadows makes them vulnerable,\u201d said Bill Beardall, executive director of the Equal Justice Center, a nonprofit law firm that represents low-wage workers in Texas.<\/p>\n
And he would know: A large portion of the center\u2019s cases involve unpaid and underpaid wages to immigrant workers. Two of its cases illustrate the nature of this abuse, and how brand-name employers attempt to distance themselves from such transgressions.<\/p>\n
Locked in without pay<\/h3>\n
Back in 2007 to 2008, the Equal Justice Center represented Chunco and 28 other janitorial workers in a lawsuit against Target and a contractor called Jim\u2019s Maintenance for unpaid wages and overtime. According to publicly available court documents, Target\u2019s lawyers asserted that the retailer was not a joint employer of the workers and thus not responsible for the wages that Jim\u2019s Maintenance had failed to pay. Target instead claimed that the workers were employees solely of Jim\u2019s Maintenance.<\/p>\n
To Beardall, the notion that these janitors were not jointly employed by Target was \u201cpreposterous.\u201d<\/p>\n
\u201cIt was the Target night managers,\u201d he said, \u201cwho let [the workers] in the building and locked them [in], and told them what to do at night, and wouldn\u2019t let them out in the morning until the Target manager had walked around the store with the crew and said, \u2018I\u2019ll let you out.\u2019\u201d<\/p>\n
The list of undisputed facts culled from hours of deposition testimony from parties on both sides of the suit reveals the degree of control Target had over the janitors. Target managers decided when shifts would start and directly told the workers when they should come in, which was usually around 10 or 11 p.m. Shifts were typically scheduled to end at 7 or 8 a.m., but Target managers regularly held the workers past the scheduled quitting time. And to ensure Target\u2019s strict cleaning standards were met, managers would frequently lock the workers in the store for the entirety of their shifts.<\/p>\n
Depositions from both sides also showed that the janitors often worked 60 or more hours each week, yet according to testimony, were never paid overtime. While Target kept records of the workers\u2019 hours, Jim\u2019s Maintenance did no such thing and instead tracked only days worked. The wages the workers did receive often came out well below minimum wage \u2014 in at least one case to the equivalent of $4.35 an hour.<\/p>\n
In 2006, Target terminated its contract with Jim\u2019s after an audit by Price Waterhouse Coopers found that Jim\u2019s had improperly misclassified multiple workers as independent contractors and failed to keep required wage and hour records. Testimony from a Target official revealed that, even after receiving audit findings, Target\u00a0did not take steps to report the violations to the proper authorities. Instead, it cut ties with Jim\u2019s, giving the cleaning contractor just two days’ notice.<\/p>\n
The end of the contract put Jim\u2019s out of business since, as Beardall put it, \u201cIts only function in life was to clean stores for Target.\u201d To make matters worse, Target decided to hold on to $496,000 in fees owed to Jim\u2019s for its services for the entire month of May 2006. As a result, Jim\u2019s couldn\u2019t afford to give the workers their final paycheck.<\/p>\n
For its part, Jim\u2019s Maintenance acknowledged in briefs to the court that it did not pay workers the required overtime wages. The contractor contended, however, that it was merely a \u201clabor recruiter\u201d and \u201cpaymaster\u201d rather than a joint employer and that Target was solely liable for the unpaid overtime, as it was the retailer who forced the workers to work long hours. The court ultimately rejected that argument, saying Jim\u2019s was, in fact, an employer.<\/p>\n
The suit was eventually settled out of court, and Target never admitted any wrongdoing. An attorney who represented Jim’s in the case did not respond to requests for comment.<\/p>\n
In an emailed response, a Target spokeswoman wrote that the lawsuit \u201cdealt exclusively with wage and hour issues\u201d and did not raise questions about the plaintiffs\u2019 immigration status or that of anyone associated with Jim\u2019s Maintenance.<\/p>\n
\u201cWe can find no references in the court record that would indicate that Target knew that plaintiffs, nor any other people, were \u2018undocumented,\u2019\u201d she wrote. \u201cThe issue instead was that their employer, Jim\u2019s Maintenance, was failing to fulfill its obligations to keep proper records, including records of I-9 compliance. This failure to fulfill its contractual obligations ultimately contributed to Target\u2019s decision to terminate its contract with Jim\u2019s Maintenance.\u201d<\/p>\n
Court documents and a hearing transcript suggest the retailer\u2019s lawyers may have suspected the workers were undocumented and intended to use their legal status against them in the suit.<\/p>\n
Target\u2019s lawyers sought to grill the workers in their depositions on matters related to their immigration status, specifically about the names and Social Security numbers the workers provided on their employment applications. They argued that if the workers had provided false information on their applications, it would speak to the credibility of their wage and hour complaints. But the Equal Justice Center filed a protective order to prohibit such questions, claiming it would have a \u201cchilling effect\u201d on the workers\u2019 ability to enforce their legitimate wage rights. The judge agreed that the workers suing Target did not have to answer questions related to their immigration status.<\/p>\n
\u201cEmployment rights apply equally to all workers, regardless of their immigration status,\u201d Beardall said. \u201cThe problem is most undocumented workers don’t know that, and employers may not know that. If they do know that, they will nevertheless use those workers’ vulnerable immigration status to discourage them from enforcing their rights.\u201d<\/p>\n
Case of the fruit cutters<\/h3>\n
A similar case unfolded between 2012 and 2013 when workers who cut, bagged and stocked fruit at H-E-B grocery stores filed a class action lawsuit claiming that they had been cheated out of minimum wage and overtime pay.<\/p>\n
The workers \u2014 mostly immigrants and women \u2014 worked at H-E-B through a contractor called Pastrana\u2019s Produce, a company with offices in Brownsville and the Mexican border city of Matamoros. The lawsuit named both Pastrana\u2019s and H-E-B as defendants, but the Texas grocer denied responsibility.<\/p>\n
\u201cThey were trying to contend that women who were cutting up fruit and nopal in their store to be sold in the produce rack and paid for at the checkout counter, that those women were contractors not of H-E-B but of something called Pastrana\u2019s Produce,\u201d Beardall said.<\/p>\n
In sworn affidavits, the produce workers claimed they routinely worked seven days a week, often for 50 hours or more, but weren\u2019t compensated for overtime and did not receive an hourly wage. Instead, they were paid a set rate for each bag of produce that customers bought. That rate depended on the type of produce sold and tended to be so low that their paychecks never amounted to minimum wage.<\/p>\n
One of the plaintiffs alleged that a manager at the H-E-B store on William Cannon Drive in Austin made her work in the cooler without any protective clothing \u2014 an allegation repeated by several others at different H-E-B locations.<\/p>\n
To further exacerbate the problems, it seems the workers were discouraged from trying to recover their wages. According to the affidavits, some of the workers knew about a previous lawsuit between Pastrana\u2019s fruit cutters and H-E-B but didn\u2019t join at that time for fear of losing their jobs. They said a Pastrana\u2019s supervisor told them the workers who did join would lose the suit as well as their jobs.<\/p>\n
As in the Target case, lawyers from the Equal Justice Center argued that the workers were jointly employed by H-E-B and Pastrana\u2019s because they were a vital part of H-E-B\u2019s business. They worked only in stores owned by H-E-B and under supervision of H-E-B managers, who determined their work hours and daily production.<\/p>\n
And also like the Target case, the dispute was settled out of court, with H-E-B maintaining that it was not a joint employer.<\/p>\n
By the time of publication, H-E-B had not responded to questions regarding the case. And attorneys for both sides remained tight-lipped both about the terms of the settlement and the specifics of the workers\u2019 immigration status \u2014 that is, whether they were authorized to work in the United States.<\/p>\n
Michael Latimer, the lawyer who represented Pastrana\u2019s, said the plaintiffs\u2019 immigration status was never a question throughout the suit.<\/p>\n
A woman who answered the door at the former addresses of one of the plaintiffs said she was a friend of the plaintiff and recalled him talking about his case against H-E-B. She also said he was undocumented.<\/p>\n
The Texas Tribune was able to reach another plaintiff by phone, but when asked to verify whether the produce workers were undocumented, she hung up abruptly.<\/p>\n
Elephant in the room<\/h3>\n
The cases are just two examples of how average citizens reap the fruits of unauthorized labor on a daily basis, even if they may not realize it. Undocumented workers toil away on towering construction projects and harvest crops in sunbaked fields. They prepare food behind kitchen doors and wash the dishes when the meal is done. They build homes, mow lawns and clean stores and office buildings.<\/p>\n
While many decry the scourge of undocumented immigrants taking jobs from Americans, they rarely address their anger at the businesses that hire those immigrants, businesses whose low prices may depend on the low wages they pay.<\/p>\n
\u201cWhat you end up with when you have a group of workers who are relegated to a second-class status is it stimulates a race to the bottom where some employers, the unscrupulous employers, prefer to hire those workers precisely because they’re exploitable,\u201d Beardall said.<\/p>\n
And so often, those exploitable workers are undocumented immigrants.<\/p>\n
\u201cIt\u2019s the elephant in the room that nobody wants to talk about,\u201d Beardall said, speaking generally. \u201cWe live in a society where we don\u2019t really want to acknowledge that … precisely because business depends on those workers.\u201d<\/p>\n
Chunco\u2019s experience may attest to that dependence. For more than a decade, he has been on the payroll of a string of different companies contracted by Target to clean its stores.<\/p>\n
\u201cIf a company doesn\u2019t meet the requirements that Target demands, [Target] breaks ties [with that company] and another one comes in,\u201d he said. \u201cThe next company comes in and asks Target if the workers are doing a good job. And if they say we\u2019re doing an excellent job, we keep our jobs with the new company.\u201d<\/p>\n
So despite the lawsuit and dissolution of Jim\u2019s Maintenance, Chunco is still buffing the same Target floors in the same Target buildings that he has for the last 12 years. And the disadvantages of working in the shadows haven\u2019t quite disappeared: He said his schedule was cut to five hours per shift, but he\u2019s still required to do all the work he used to do in eight or 10.<\/p>\n
\u201cWhen you’ve been here for a while, you learn that they do exploit you,\u201d he said. \u201cBut we have to work.\u201d<\/p>\n
Jay Root and Elena Mejia Lutz contributed to this report.<\/i><\/p>\n
<\/i>Disclosure: H-E-B has been a financial supporter of The Texas Tribune.\u00a0A complete list of Tribune donors and sponsors can be viewed\u00a0here<\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"Two cases illustrate how big-name employers benefit from illegal labor and why undocumented workers are easily exploited.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[140,3331,193,2260,116],"class_list":["post-257828","post","type-post","status-publish","format-standard","hentry","category-news-and-analysis","tag-border-and-immigration","tag-bordering-on-insecurity","tag-corporate-america","tag-texas","tag-washington"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/257828","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=257828"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/257828\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=257828"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=257828"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=257828"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}