Does Alexander Acosta still think undocumented workers deserve protection?

Next week, the Senate Committee on Health, Education, Labor and Pensions holds its hearing on the nomination of Alexander Acosta to be secretary of labor. While Mr. Acosta has had several confirmation hearings in the past, and is expected to do well next week, it is important that he receive a thorough and tough vetting. In the context of an administration that has shown itself to be remarkably anti-worker, it’s more important than ever that the labor secretary be prepared to enforce our labor laws and advocate for all working people.

Senators should ask Acosta specifically about his views on labor and employment laws as they pertain to undocumented workers. For example, it’s been reported that a spate of raids by Immigration and Customs Enforcement have left undocumented workers—who are already easily exploited—unwilling to report wage theft and labor violations. Now more than ever, we need a labor secretary who will argue for a fair economy and a labor market that works for all workers.

As a member of the National Labor Relations Board (NLRB), Acosta once voiced his adamant belief that undocumented workers deserve the protection of our country’s labor laws. In Double D Construction Group, 339 NLRB No. 48 (2003), the board found the company’s owner had unlawfully terminated an employee, Thomas Sanchez, for his participation in union activity. Not only did Acosta join the board majority overruling the judge’s contrary finding, Acosta wrote a separate concurrence chastising the judge, who had discredited Sanchez’s testimony at the trial on the ground that Sanchez had once knowingly used a false Social Security number to obtain employment. The administrative law judge reasoned: “If Sanchez demonstrated a willingness to use a false government document to obtain work… he may also be willing to offer false testimony” at the trial.

Acosta disagreed. “Undocumented workers are statutory employees entitled to the rights guaranteed by Section 7 of the National Labor Relations Act,” Acosta said. He rebuked the judge’s basis for disbelieving Sanchez’s sworn testimony, explaining that his “reasoning effectively discredits the testimony of any once-undocumented worker, who to obtain work provided a false Social Security number.” He continued, “because these cases typically turn on whose facts are believed, such an automatic sanction makes it exceedingly difficult for the General Counsel to establish an unlawful discharge or other unfair labor practice directed against an undocumented worker.” Acosta declared that the NLRB’s “continued commitment to prosecuting unfair labor practices directed against undocumented workers requires an understanding of the workplace and life realities faced by these individuals. Providing a false Social Security number on an employment application and/or a form I-9 in order to obtain work is not the equivalent of perjury in a legal proceeding.”

While Acosta would not be enforcing the National Labor Relations Act if confirmed to be the secretary of labor, he would be responsible for enforcing other important statutes to protect vulnerable workers, such as the Fair Labor Standards Act.

Acosta’s view that every worker in America deserves basic protections in the workplace is starkly at odds with President Trump, who has repeatedly referred to Latino immigrants as killers and rapists, and promised wide-sweeping deportations, immigration bans, and the construction of an enormous wall along the U.S.-Mexico border.

It is crucial that the committee ask Acosta if he believes the Labor Department should protect all workers. Will Acosta, while serving for a president who is clearly hostile to undocumented workers, maintain this principled stance in standing up for powerless workers? Whose conscience will guide his actions at the Department of Labor—if he is confirmed by the Senate—and what will the nation remember about Acosta’s legacy at the head of an agency charged with the responsibility of protecting our nations’ workforce?