The Claremont Progressive

Letter from national and regional labor organizations and legal centers in support of Pomona students, faculty, and workers.

November 30, 2011

David Oxtoby
President
Pomona College

Pomona Board of Trustees
Teresa Shaw
Secretary of the Trustees

Pomona College
550 N. College Ave.
Claremont, CA 91711

Re: re‐verification of Pomona employees’ immigration status
Via e‐mail, hand‐delivery and U.S. mail

Dear President Oxtoby and Trustees:

We are national and California‐based organizations whose mission it is to safeguard and advance the labor and civil rights of working people. Together, we have many decades of experience advocating for both immigrant and non‐immigrant workers across the United States. We write to ask that the Pomona College Administration end its I‐9 reinspection process affecting workers who are attempting to organize a union on its campus.

This letter is prompted by our deep concern about the difficulties encountered by immigrant workers, often employed in the lowest‐paid and highest risk occupations in our country, when they try to exercise their rights to engage in concerted activity to improve their workplace conditions.

We understand that the College has begun a process of reverifying the immigration status of many of its employees, including many dining hall workers, in the midst of a labor organizing campaign. Pomona has said that it has not undertaken this reverification as a result of any federal agency audit or request, but because a complaint was made to the Board of Trustees accusing the College of not obtaining proper documentation from its employees. We understand that the College’s own review found no issue of noncompliance with the federal I‐9 process.

Nonetheless, the College decided on its own, and without any legal obligation to do so, to reverify the immigration status of its staff. Some of the staff members have been employed by the College for decades. Staff was called in for interviews on a very short time frame, given a letter that required an interview between one and four days’ after notice. We understand as well that the College has not shared with workers or their representatives any particulars about the complaint, its source, the specific allegations made, or the timing of the complaint and investigation.

As you know, the National Labor Relations Act expresses our national policy that all workers be free to exercise their right to organize and bargain collectively through representatives they choose, without interference by their employers. The law further provides that employers may not retaliate against workers who exercise these protected rights. Employers may not directly retaliate by threatening to fire or firing workers. Nor may they use the immigration authorities or immigration laws to retaliate indirectly. The protections of the law extend to all employees, regardless of their immigration status at the time the work was performed.

In spite of the protections in labor and immigration laws, workers are extremely vulnerable to anti‐union and anti‐organizing pressure from employers. All too often in our experience, employers who are opposed to recognizing a union fire union supporters and/or engage in other tactics to use perceived immigration status as a tool to defeat organizing campaigns.

Many employers ignore the I‐9 process when they initially hire employees. Others follow the I‐9 process at the time of initial hire, but take a much keener interest in the immigration status of their workers at the moment that those workers begin a union organizing campaign.

The vagueness of the complaint that Pomona apparently received and the timing of the reviews – in the middle of a two‐year long union organizing campaign – create a climate of fear among many of Pomona’s longest‐standing employees. Additionally, it creates a suspicion in the Pomona community, in the labor and civil rights communities and in the community at large, that the college is placing itself in the company of employers who use abusive tactics in order to crush organizing campaigns.

Pomona has a proud history of inclusiveness, including its experience as a sanctuary college and your own 2010 commencement speech where you spoke in favor of the federal DREAM Act and comprehensive immigration reform. We urge you to continue that tradition by discontinuing the questionable and divisive I‐9 review process that you have begun.

Should you have any questions about this letter, we would be happy to discuss them with you. Please contact Rebecca Smith, Coordinator, Immigrant Worker Justice Program, National Employment Law Project, 206 324 4000, rsmith@nelp.org.

Sincerely,

National Employment Law Project
American Civil Liberties Union of Southern California
Asian Law Caucus
Asian Pacific American Legal Center, Member of Asian American Center for Advancing
Justice
La Raza Centro Legal
MALDEF
National Council of la Raza
National Day Laborer Organizing Network
National Domestic Worker Alliance
National Immigration Law Center
Pomona Economic Opportunity Center
Restaurant Opportunities Center‐United
Worksafe, Inc.
Young Workers United

Dear Pomona College Board of Trustees:

As a Pomona College alumnus, as well as a recent two-year Visiting Assistant Professor in the Politics Department, I feel compelled to respond to your recent letter to the Pomona College Community regarding efforts to verify the legal status of faculty, students, and staff of the College.

At the outset, let me state that I think everyone within the Community should take some comfort in the fact that the Board of Trustees is treating this matter with the respect and concern it deserves. Nevertheless, your letter provides inadequate justification for the actions the College has taken at the Board’s urging, relies on unsupported and incomplete assertions about the potential consequences to the College, and displays an all-too-eager willingness to adopt inclusive resolutions without equal enthusiasm for giving true meaning to the expressed principles.

1. The College’s Actions Lack Adequate Justification
Your letter states that the “situation arose following a complaint the Board received earlier this year alleging that it was the policy of the President’s administration not to obtain proper Work authorization documentation of College employees, and that no such verification of employees’ legal authorization to Work was ever undertaken by the College as required by law.” You then state that based on the “alleged serious violations of federal law,” the Board had a “responsibility to investigate the complaint.”

Without more information, it is impossible to assess the accuracy of these statements. After all, your letter does not specify whether the complaint was anonymous or whether it came from someone with actual knowledge of the College’s hiring and verification practices. You undoubtedly can appreciate the difference between responding to rumors, innuendo, or unsubstantiated claims and investigating supported allegations. At the very least, I hope that the College’s legal counsel advised you of the material difference between the two.1

More importantly, as you note, the complaint focused on the College’s “policy. . .not to obtain proper Work authorization” and “that no such verification of employees’ legal authorization to work was ever undertaken by the College as required by law.” Thus, even if a duty to investigate arose, the focus of that inquiry should have been limited to the College’s policy and practices, not on the status of individual employees. There was therefore no need to review the I-9 forms of each employee of the College. The decision to conduct an audit of the I-9s demonstrates, at best, overzealousness and, at worst, a fundamental disregard for the dignity and privacy of every employee.

Tellingly, the investigation revealed that the College’s hiring procedures comply with the law. In other words, the “serious” and specific allegations lacked merit. Thus, had the Board acted in a more restrained and thoughtful manner, this entire episode could have been avoided.

In short, the Board needlessly created the current problem. To seek to justify the College’s actions by referring to a discredited allegation and to federal law is disingenuous.

2. The Board Relied on Unsupported and Incomplete Risk Assessments
You stated in your letter that, “Not being in-compliance with the law could jeopardize the College’s ability to continue to effectively carry out its educational mission. An employer can be subject to civil fines, criminal penalties and debarment from participation in federal and state contracts and grants … These risks to the institution were especially noteworthy, given that the government is aggressively enforcing the I-9 laws against employers.”

First, as you noted in your letter, the College’s policies and practices conform to existing federal law. This fact alone substantially reduces the jeopardy of fines, criminal sanctions, and loss of federal and state contracts and grants. Moreover, while it is true that the Obama Administration is pursuing a more aggressive approach to enforcing I-9 laws, not a single institution of higher education has been the target of the Immigration and Customs Enforcement Office (ICE). Even a cursory review of the ICE’s policy statements reveals that the agency focuses its efforts on employers dealing with “critical infrastructure facilities-—-airports, seaports, nuclear plants, chemical plants and defense facilities.”2 As much as we Sagehens may value the College Gates or the new Sontag residence hall, these are not “critical infrastructure facilities.” The ICE’s other enforcement focus is on those employers who engage in abusive or exploitative employment practices.3 Here again, Pomona would not track on the ICE’s radar——no matter what the Workers for Justice might say. In other words, the specter you raise of severe consequences for Pomona College’s Community if the Board did not take these actions turns out to be more imagined than real.

Additionally, your letter ignores the very real legal risks associated with overzealous employer efforts to verify the status of employees. Subjecting employees to intrusive and arbitrary verifications may violate federal law just as much as failing to verify an employee’s authorization to work. In fact, while not even one college or university has faced an ICE enforcement action, the Department of Justice brought an action against a community college district for going too far in its efforts to verify new employees’ work status. The Maricopa County Community College District was forced to pay over $45,000 in civil fines (and $22,123 in back pay).4

The College’s actions may also have violated the National Labor Relations Act (NLRA). As you are well aware, many of Pomona College’s employees are currently engaged in an effort to unionize. The facts suggest that many of these very Workers were the focus of the College’s I-9 verification efforts. As the National Labor Relations Board has made clear, undocumented Workers are still employees under the NLRA and are therefore protected from unfair labor practices.5 Efforts to intimidate or coerce employees during the unionization process undoubtedly qualify as unfair labor practices. The Department of Labor and the NLRB are taking a much more active role in enforcing the rights of Workers than in the past. Therefore, were an employee to lodge a complaint over the College’s recent actions, the NLRB would take the allegation seriously and scrutinize the College’s decision and motives.

Together, this suggests that the Board either inaccurately weighed the risks of its actions or misrepresented those risks to the Community.

3. The Board Must DO More to Affirm the College’s Commitment to an Inclusive Environment
Your letter highlights the steps taken by College to treat each affected employee with respect. I do think it is appropriate to acknowledge that the College’s efforts to assist its employees are noteworthy and commendable. But the praiseworthiness of the actions is dampened by the fact that these employees are in peril because of the Board’s unfortunate decision to pursue a misguided, unnecessary, and risky effort. Extending a hand to someone you just knocked down is really the least a person can do.

Reaffirming the College’s commitment to an inclusive environment is an admirable first step. Unfortunately, the action rings hollow without actions to back it up. After all, “commit” requires more than words. It demands deeds. Thus, more laudable than a statement by the Board is a true commitment not to engage in these types of practices in the future and to work to undue the harm done to those members of our community so deeply affected.

Finally, as you remind us in your letter, the Board’s role is to be “stewards of the College’s resources and reputation.” But I would hasten to add that your responsibility is to be not just “stewards,” but good stewards. This means relying not just on the legal advice of outside counsel with no affection for, or affiliation with, Pomona College, but also on considerations of community, fairness, and justice. After all, though those College Gates may not be “critical infrastructure facilities,” they do remind us that our task is to bear our “added riches in trust for mankind.” Even more than the College’s departing graduates, the Board must fulfill this duty. Regrettably, it is the considered judgment of many within the Pomona College Community that in this matter the Board has not lived up to its responsibility. I urge you to take immediate remedial action.

Sincerely,
Michael Teter ‘99 Visiting Assistant Professor of Politics, 11 Michael.Teter@aya.ya1e.edu
cc: President David Oxtoby
Pomona College Faculty
Pomona College Students
Pomona College Staff

Footnotes/references:
1. 8 C.F.R. 27421.9 (“When the Service receives a complaint from a third party, it shall investigate only those complaints that have a reasonable probability of validity” (emphasis added). The Service has interpreted the regulation’s reasonableness standard to require, at a minimum, the name and address of the complainant, a detailed factual allegation, including the date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions.)
2. See Immigration and Customs Enforcement, “Worksite Enforcement,” available at http : //www. ice. gov/worksite.
3. Id.
4. U.S. Dept. of Justice, “Justice Department Settles Allegations of Immigration~Related Employment Discrimination Against Maricopa Community College District,” May 16, 2011, available at http://WWW. justice. gov/opa/pr/201 l/May/ l l~c1t-627.html.
5. National Labor Relations Board, of General Counsel, Memorandum GC O2-O6, July 19, 2002.

FOR IMMEDIATE RELEASE

Email: concerned.pomona.students@gmail.com

POMONA COLLEGE STUDENTS HOLD VIGIL IN PROTEST OF EMPLOYEE DOCUMENT VERIFICATION

We, a group of concerned Pomona College students, are holding vigil outside Alexander Hall, which houses Pomona College’s administrative offices, in response to certain actions the College has taken regarding employee documentation.

On Monday, Nov. 7, 84 members of the Pomona College community – including faculty, staff, and students – received letters stating that there were deficiencies in their work documents. These individuals were given a deadline of Dec. 1 to re-verify their paperwork. As students committed to community engagement and social justice, we are deeply concerned about this impending deadline and the possible termination of members of the Pomona College community. We believe that the circumstances surrounding these planned terminations have been unclear, unjust, and in direct violation of the values espoused by Pomona College.

On our campus, this chain of events has caused significant distress, which, in the context of the national political discourse on immigration, has generated an urgent mandate for us to initiate dialogue and critical inquiry regarding the College’s actions. In the past few weeks, we have endeavored to communicate our concerns with Pomona College administration through a number of College-approved channels. The administration has been unwilling to attend to students’ demands, which have included at minimum an extension of the Dec. 1 deadline in order to provide ample time for mutual, transparent dialogue regarding this issue.

In response to the actions of Pomona College administration and its refusal to consider seriously the concerns and demands of the student body, we are moving forward by physically holding vigil on campus and demanding that:

• The Board of Trustees ceases and desists with its decision to re-verify work documents.
• Absolutely no Pomona College employees are terminated because of the College’s failure to properly collect employee documents during the hiring process.
• President Oxtoby and his administration are not held solely responsible for the College’s verification practices, given that deficiencies in many employee documents occurred during the preceding administrations.
• The Board of Trustees does not hide behind a cloak of confidentiality and legality, when it is a hallmark of a democratic society that issues can be discussed and considered communally.
• The Board of Trustees open channels of communication that are accessible to all members of the community and are not impeded by gatekeeping and bureaucracy.

We intend to maintain a non-disruptive presence around Alexander Hall until our demands have been met in substantive, transformative ways.

# # #

[Editor's Note: A statement of presence put out by the same group of students.]

Dear President Oxtoby, Dean Conrad, Dean Feldblum, Office of Campus Life, and Campus Safety:

In response to recent events regarding calls for employee document verification, we, a group of concerned Pomona College students, have established a peaceful extended vigil in front of Alexander Hall. After considering a number of possible forms of action, we have made a deliberate decision not to conduct an obtrusive action such as occupying a campus building. It is our hope that the particular course of action we have chosen will not hinder people wishing to carry out their daily work or education. Our statement to the community, which was distributed through email today, contains additional background information on our actions.

We wish to request from you cooperation, open communication, and respect throughout the duration of our presence, and we intend to fully uphold these values ourselves.

Our group is committed to:

• Communicating clearly and respectfully with all community members.
• Not obstructing sidewalks or other pathways, including those that lead in and out of Alexander Hall.
• Abiding by quiet hours and being mindful of our noise levels during all other times.
• Maintaining a peaceful, nonviolent space.

From your various offices and groups, we respectfully request:

• Unimpeded access to the lawn spaces surrounding Alexander.
• That sprinklers on the aforementioned areas be turned off or that we are given information about sprinkler locations and types.
• Consideration and clear communication from all community members.
• Campus Safety’s abstention from the use of force and threats of force.
• An effort to limit involvement by the Claremont Police Department.

We hope we can count on your support. Together, we can work to foster a space for student voices on campus and create channels of communication that all members of our community can access. Please feel free to come speak with us in person if you have any questions or comments.

Sincerely,

Concerned Students of Pomona College

[Editor's Note: This letter was written by a group of Pomona College students taking place in an extended vigil in the form of a tent city outside of Alexander to show solidarity for 84 workers, students, and faculty who received letters requiring reverification of work authorization documents.]

Dear Pomona College Community and Other Interested Parties,

As Pomona College students, we are writing to shed light on why we are holding an extended vigil outside of Alexander Hall and elucidate some of the reasons we have decided to take this action. In hopes of being upfront, we want to make it extremely clear that we are not affiliated—nor do we wish to be confused—with Workers for Justice, UNITE HERE, any other union or labor organization, or any Occupy movement. We are Pomona College students who are deeply disappointed and concerned with the recent actions taken by the College, specifically the Board of Trustees, with regard to employee documentation.

After much deliberation, discourse, and thought, we have decided to hold a continued presence outside of Alexander Hall, with the aim of expressing support for and solidarity with the students, staff, and faculty who received letters pertaining to their work documents, as well as any members of the community who have experienced distress as a result of the current situation. We are here to demonstrate our dissatisfaction with recent actions, to promote dialogue about the socially and politically significant underpinnings of recent events, and to provide a space for people to share their thoughts and feelings. Our aspiration is that people view our decision to remain outside of Alexander as a public illustration of our willingness to sacrifice time, comfort, and health for our beliefs. Additionally, we hope that we are permitted to continue with our non-violent, respectful demonstration, which is designed to not infringe upon any individual’s work or study.

We have made a deliberate decision to not conduct a highly obstructive form of action, such as an occupation of a campus building, because we do not want to encroach upon the daily activities and responsibilities of community members. Our presence is intended to create conversation and communication. While we think that there is value and urgency in responding to the actions of the Board of Trustees, we do not want to sacrifice any discussion because of activities that could be construed as combative towards or hindering to Pomona College students, staff, or faculty.

The actions taken by the Board have had a profound impact on us as students. We believe that this process could have been handled in an entirely different manner, and we call for efforts to ameliorate and remedy current wrongdoing and also to ensure that matters regarding the lived experiences of Pomona College members are handled thoughtfully, carefully, and more collaboratively in the future. In this regard, we demand that:

• The Board of Trustees ceases and desists with its decision to re-verify work documents.
• Absolutely no Pomona College employees are terminated because of the College’s failure to properly collect employee documents during the hiring process.
• President Oxtoby and his administration are not held solely responsible for the College’s verification practices, given that deficiencies in many employee documents occurred during the preceding administrations.
• The Board of Trustees does not hide behind a cloak of confidentiality and legality, when it is a hallmark of a democratic society that issues can be discussed and considered communally.
• The Board of Trustees open channels of communication that are accessible to all members of the community and are not impeded by gatekeeping and bureaucracy.

It is our belief that we have already pursued a number of institutionally accepted forms of communication, that our concerns have not received adequate and timely responses from the administration, and that our voices, as Pomona College students questioning administrative actions, have not been sufficiently recognized or considered. These are primary reasons we have chosen to elevate the level of conversation by holding an extended vigil outside of Alexander Hall.

We stress that we are working to maintain a peaceful presence outside of Alexander in order to foster dialogue, demonstrate our support for individuals impacted by the Trustees’ decisions, and create a visible and open space for people to grapple with the myriad issues and challenges facing our community.

Sincerely,

Concerned Pomona Students