Whose Side is ICE On? 

Officials from Immigration and Customs Enforcement take sides in the ongoing labor dispute at Emeryville's Woodfin Suites.

Early in the morning of October 4, as Rosa Flores was preparing for work, she answered a knock at her door. The couple standing there said they had been sent to investigate the labor dispute at Emeryville's Woodfin Suites hotel. They wore no identifying clothing and offered no credentials but said they were from US Immigration and Customs Enforcement (ICE).

In April, Emeryville's Woodfin hotel had fired Flores and eleven other housecleaners in the middle of a labor dispute over Measure C, which requires hotels to pay housekeepers a minimum of $9 an hour. Flores had been an outspoken leader until she was fired for a Social Security number mismatch.

"Do you know that immigration was involved in that?" Flores said the agents asked her, referring to the labor dispute. She said they then showed her news clippings in which she had been quoted as one of the leaders on the picket lines. Flores said she needed to leave for work and told the officials, "Look, I'll come to your office to talk to you. ... I have to leave now." So they wrote down the local ICE office address and left their names: David Moss and Hermilia Flores.

Flores' lawyer, Allison Davenport of the Centro Legal de la Raza, said that when she later called to inquire about the nature of the visit, Moss refused to elaborate but told her it was about an "ongoing investigation regarding her prior employment." Neither Davenport nor Flores, who is being identified here with a pseudonym, has heard from them since then.

Federal immigration officials got involved in the labor dispute after a Republican congressman with ties to Woodfin's CEO asked the agency to intervene. That CEO, Samuel Hardage, is a longtime donor to conservative causes and candidates including his local congressman, Brian Bilbray of San Diego. Hardage brought up his hotel's situation to his congressman in a "casual conversation," he admitted in a recent interview. Bilbray, who chairs the House Immigration Reform Caucus, then alerted ICE that "hotels in Emeryville are ... employing undocumented workers." The congressman's involvement was first reported by the San Francisco Bay Guardian.

Activists believe Hardage asked immigration officials to investigate his own hotel as a way of retaliating against workers involved in a labor dispute that wasn't going well for the hotel.

In January, a state court ordered Woodfin to rehire Flores and the twenty other workers it had fired in December while the city investigated complaints that the hotel was not complying with Emeryville's living-wage ordinance. It was shortly after that — in a letter dated February 21, 2007 — that Bilbray sought federal intervention. When the agency's investigation found that some workers' Social Security numbers didn't match those in federal records, they were fired. By calling in the feds, the hotel effectively trumped local authorities and was able to fire twelve of the workers.

Nor did Bilbray's effort stop with Woodfin. He asked ICE to investigate all four Emeryville hotels. The results of that effort became apparent on August 29, when ICE agents showed up at the Hilton Garden Inn and snatched dishwasher Felipe Leon, 52, a Mexican immigrant who had worked there for eighteen years. Leon is now in deportation proceedings for using fraudulent identification to obtain a Social Security card, according to ICE spokesperson Virginia Kice. Hotel officials did not return calls for comment, but union representative Lian Alan said they were "surprised and didn't know what was going on" when the agents arrived. The agency subsequently gave the Hilton Garden Inn a list of twelve unauthorized workers, who Alan said were immediately fired.

As for Emeryville's two other hotels, Jeff Given, manager at the Courtyard Marriott Hotel, confirmed that his hotel was investigated but said the inquiry did not result in any actions against workers. Sheraton Four Points hotel manager Epenesa Pakola declined to answer questions.

But even as the enforcement effort has spread to the city's other hotels, Woodfin remains the focal point of legal strife. While the other three hotels have complied with Measure C and even paid back wages, Woodfin has twice sued the city in federal court to have the ordinance declared unconstitutional. Both cases were dismissed.

Although the hotel began complying with the measure in August 2006, it still owes nearly $250,000 in back wages to fifty workers and $50,000 in fines and fees to Emeryville, according to city attorney Michael Biddle. The hotel has missed two city-imposed deadlines to pay. By October, city officials had become so exasperated that they went to state court asking for a judgment to force the hotel to pay the money. Woodfin is expected to countersue.

Why would a large corporation go to so much trouble to avoid paying workers a minimum of $9 an hour in a tiny city like Emeryville? "Measure C is about forcing a union organization on business," the hotel chain's ardently anti-union CEO said in an interview. Although the hotel itself is not unionized, Hardage claims that the East Bay Alliance for a Sustainable Economy (EBASE), the local worker advocacy group behind Measure C, is basically a union. "Measure C is not a living-wage ordinance," added hotel lawyer Bruno Katz in a separate interview. "It's a collective bargaining agreement masquerading as a living-wage ordinance."

In fact, Measure C is a different way of accomplishing some of the workplace gains that once would have been the exclusive province of a union action. Passed by voters in 2005, the ordinance requires that all housekeepers make a minimum of $9 an hour and that any housekeepers who clean more than 5,000 square feet in an eight-hour shift receive time-and-a-half compensation.

Hardage was adamant that "the workers were not fired for retaliation" to their vocal support of the ordinance. Instead, he said, Woodfin was just following up on the letters it had received from the Social Security Administration alerting it to discrepancies in the employees' documentation. When asked why his hotel had not followed up in the years before the labor dispute, he denied having received such letters before.

But in fact, these so-called "no-match letters" are sent out annually by the Social Security Administration. "Woodfin knew of the no-match for years and was never concerned about them before," said EBASE organizer Brooke Anderson. "It was only once the workers were standing up for their rights that they used this as a pretext to fire them." Indeed, Flores said she had worked at Woodfin for three years before the hotel brought up the issue of no-match. "They never mentioned it until a couple months after we began asking for a higher wage," she said.

Monica Guizar of the National Immigration Law Center said the immigration agency was ignoring its own internal operating procedures by "taking retaliatory actions against workers who speak out." She was referring to a 1998 "Memorandum of Understanding" between the Department of Labor and the old Immigration and Naturalization Service, in which the agency agreed to not intervene where there was a labor dispute in progress. The rationale was that workers would not report labor abuses if they feared immigration action against them. "Labor laws protect all workers regardless of their immigration status, and there are laws that clearly protect workers from being fired when they are in the middle of a labor dispute," Guizar said.

But ICE, which was created in 2003 as the successor to the old Immigration and Naturalization Service, and is part of the sprawling Department of Homeland Security, has not been abiding by those guidelines. "A labor dispute does not preclude us from conducting an investigation," said Kice, who declined to comment on her agency's investigation of Woodfin.

The Bush Administration has plans for an even stiffer crackdown. Last August, Homeland Security Secretary Michael Chertoff announced an unprecedented new rule that would require employers to fire employees who are unable to correct their no-match issue within ninety days. But as soon as Chertoff announced the proposed rule, a group of labor and immigration rights groups went to court to stop it.

While DHS's target was clearly illegal immigrants — who often do use fraudulent Social Security numbers to gain employment — government statistics show that a full 70 percent of the people who receive no-match letters are US citizens. And so, on October 10, US District Judge Charles Breyer issued an injunction blocking implementation of the agency's plan. His ruling stated that, if not stopped, the DHS rule "would result in irreparable harm to innocent workers and employers" by resulting "in the termination of employment to lawfully employed workers."

Labor and immigrants rights activists say the real intent of this crackdown was to pressure Congress to pass the President's plan for immigration reform. Chertoff himself said as much when, in responding to Judge Breyer's ruling, he said, "President Bush made clear in August that we are going to do as much administratively as we can ... to enforce our immigration laws. Today's ruling is yet another reminder of why we need Congress to enact comprehensive immigration reform."

And so, the raids are likely to continue. According to ICE statistics, there were 4,077 administrative raids of workplaces between October 2006 and October 2007, an increase of 816 percent over the same time frame in 2003. There already have been more than half a dozen raids in the Bay Area this year.

Meanwhile, the city of Emeryville continues its fight to uphold Measure C, on behalf of the hotel housekeepers. The city is scheduled to face off against Woodfin Suites in court on February 27.

And Flores is cleaning houses now, uncertain of her future.

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