Migrants’ Labor Rights in the Construction Industry Research Paper

Introduction

Labor rights are the hard-fought achievement of many generations of thinkers and activists, who struggled for improvements in safety standards, conditions, wages, and respect for fellow humans throughout the 18-20th centuries.¹ Some of the greatest achievements of the labor rights movement include the abolition of child labor, the introduction of the 8-hour workday, as well as medical insurance, paid vacation, maternity leave, and safety regulations serving to protect the workers. Despite these contributions that have shaped our lives into what they are today, labor rights in the 21st century have been eclipsed compared to other human rights topics.

The construction industry was historically one of the most dangerous occupations available. It combines hard manual labor, high exposure to the elements, and high levels of personal risk. At the same time, the construction industry is a very capital-intensive industry, as building houses, roads, and other objects of infrastructure require significant investments. The use of migrant labor in the construction industry is a well-known issue, as migrants lack protection and labor rights, leaving plenty of room for exploitation, swindling, and exposure to harm. Many countries justify such events by claiming that illegal migrants do not deserve protection from the law. To stop exploitation, improve the standards of labor and quality, and protect the lives of individuals forced to work in horrible conditions in foreign countries, the international standards of labor and the local legislation in regards to construction labor should be equally applied to residents, legal migrants, and illegal migrants at the same time.

Background

It is estimated that illegal migrants make up roughly 5% of the entire workforce in the US.² The construction industry is one of the largest profiteers from these illegal workers, as 14-25% of the entire workforce in that area is comprised of illegal, half-legal, or undocumented individuals.³ With the total number of employees in the construction industry being around 10,500,000, the number of illegals fluctuates between 1,470,000 – 2,625,000 individuals.⁴

Historically, the construction industry was always utilizing foreign labor in order to fill in the gaps. Construction is one of the hardest and dangerous forms of occupation, with around 25.6 cases of work-related deaths for every 100,000 workers per year.⁵ For comparison, the mortality rate for the army service members actively engaged in foreign conflicts is 27.7 cases per 100,000 individuals. As it stands, the American construction industry is in need of 150,000 additional workers, meaning that even with the migrants filling up spaces, the industry remains in a large deficit of skilled laborers.⁶

The situation around the world is not much different. Individuals from poor countries seek construction work in industrial nations due to the relative ease of acceptance and low skill cap level. Western-European countries benefit from illegal workers from Eastern Europe and the poorer parts of central and western Europe, such as Spain and Greece. The Russian construction market is populated by migrants from Uzbekistan, Kazakhstan, and Tajikistan as well as from ex-soviet republics such as Ukraine and Moldavia. Migrants from Mexico and Latin America populate the US labor market.

Who are Illegal Migrants?

Illegal migrants are individuals who cross the border of the country without undergoing the standard procedures required for being allowed inside, such as acquiring a visa, a refugee status, and other necessary formalities.⁷ These individuals typically do not report to the supervisory bodies of their locality and do not have a certified ID of their host country. They avoid all contact with public services and law enforcement. Typically, these individuals work in low-skilled sectors of the economy in order to provide for themselves and their families back home.

Undocumented workers constitute a different legal term. An undocumented worker is an individual employed in the service of a company without being listed in their official roster or charter.⁸ They do not receive pensions, medical security, social security, and so forth. The company does not pay taxes for their labor either. Employing undocumented workers is considered illegal. The main difference between undocumented workers and illegal migrants is that the former can be the country’s own citizens, while the latter are invariably citizens from other countries. Outside of the legal practice, these terms are used interchangeably due to the fact illegal migrants also constitute the vast majority of undocumented workers.

Irregular migrants are a special group that borders between undocumented and illegal employees.⁹ This type of migrants is present in the countries of the Gulf Cooperation Council (GCC), such as Qatar, Kuwait, the UAE, and Saudi Arabia. Due to having a highly sophisticated border control system and a relatively small border length, it is very hard to cross into the country undetected. Irregular migrants gain access into the country through dubious means, such as buying worker visas, claiming corporate visas, and obtaining sponsorship from third companies.

Contradictions in Definitions

The primary source of ambiguity in the definitions lies between illegal migrants and undocumented workers. In most countries, companies are obligated to report a worker’s illegal status to the authorities as soon as they learn of it. However, the majority of the companies that use their labor in the field, when discovered, claim ignorance of their illegal status, instead preferring to receive the penalty for lack of documentation, as the rules and laws surrounding the use of undocumented workers are much more benign. The penalty for it in the US usually includes a fine of 110$ or more, whereas holding illegal migrants in employment results in charges, criminal fines, and even license revocations.¹⁰ The latter is especially dangerous for construction companies, which require licenses in order to continue their work.

Reasons for the Use of Migrants in the Construction Industry

There are numerous reasons for construction industries across the world to utilize illegal migrant labor. The primary reasons are as follows:¹¹

• Illegal migrant labor is cheaper. Although on paper undocumented workers are entitled to the same rights and protections as other workers, in reality, they are held hostage by their illegal status. In order to file a wage claim or a complaint, an illegal worker needs to be exposed to the authorities, which can result in expulsion from the country. Thus, many employees in the construction industry save on the necessities that documented workers are entitled to, such as medical insurances, fair wages, payments for overtime labor, compensations for injury, and other expenses.
• Illegal migrant labor is plentiful. As it was already mentioned, the majority of expansive construction markets are undermanned. There are many explanations for such a situation. Working in construction is hard, messy, and dangerous. The employment lacks the prestige and is on par with agriculture. As a result, not many locals would be willing to enter the construction field. Illegal migrants, on the other hand, are desperate and willing to work for wages lower than those available to the locals, making them more attractive for greedy employees.
• Illegal migrants can provide skillful labor. This situation is common among the ex-soviet republics. The USSR produced a good amount of skilled workers and engineers, which were left out of work after the fall of the government in 1991. Developing countries with a strong educational base often produce individuals who are willing to work for a lower wage in order to escape the poverty of their homes.
• – Large construction projects. The construction of projects for big national and international events of some kind (FIFA championships, Olympics games, forums, etc.) often depletes the workers in a city or area, leaving many vacancies to be filled out. The inability to use the local workforce and the tight budget constraints often force the contractors to employ illegal labor in low-skilled positions. This issue arose during the 2014 Sochi Winter Olympics, the 2016 Rio Olympics, and the upcoming Soccer World Cup 2022 in Qatar.¹²

As it is possible to see, the primary reasons for hiring illegal migrant labor include reducing costs and making up for the lack of labor in the domestic market.

Ethical Issues with Hiring Illegal Workers

There are numerous issues associated with illegal workers in the construction industry. The first issue is the issue of breaking the law. In the majority of the countries, it is illegal to hire undocumented workers as a method of reducing the incentive for illegal migration.¹³ From the perspective of Kantian ethics, it is the duty of both the immigrant and the employer to uphold the law, making it immoral to implement illegal labor. From the point of utilitarian ethics, however, both the illegal migrant and the employer benefit from this mutual arrangement, as the migrant gets the job and the payment he or she covets, while the employer gets to save costs and fill the vacancy. According to rights ethics, neither the employer nor the employee has the right to engage in economic relations unlawfully.

Another side of the ethical argument involves the protection of illegal migrants by the law.¹⁴ Kantian ethics does not offer a conclusive solution to that dilemma, as according to it, the migrant had already broken the law by illegally entering the country. However, Kantian ethics stand against the exploitation of one individual by another, thus involuntarily offering a moral basis for the protection of illegal migrants. From a utilitarian perspective, exploitation leads to great amounts of suffering among the employees, which also gives an ethical basis for support. Rights ethics strongly suggests that all employees are to be protected by labor laws.

Finally, there is the ethical issue of illegal labor being harmful to society. Undocumented workers are often unskilled and poorly motivated, meaning that the results of their labor can be dangerously subpar and endanger human life. In addition, there are some concerns about illegal labor affecting documented workers in the industry.¹⁵ Lastly, illegal migrants often result in increased crime rates in the local area. A utilitarian approach must calculate these variables when estimating the balance of good versus bad. Kantian ethics states that it is the duty of an employee to uphold the law and provide a high quality of labor. Rights ethics sustain the plight of the local population for safety and security.

Illegal Migrants and Labor Laws

The rights of illegal migrants are covered by the international labor standards, with the two major conventions being the Migration for Employment Convention of 1949 (No. 97) and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143). The majority of the countries of the world, however, have not ratified these conventions.¹⁶ The first convention ratified by 49 countries out of 195, and the second – by 23 sovereign states. In both cases, the majority of the countries that ratified the convention are located in Africa and Latin America. All large European countries, such as France, Germany, Spain, Portugal, Serbia, and the UK have ratified one of the two conventions. The migration for employment convention obligates all countries to provide extensive and comprehensive instruction on all legal aspects of migration as well as the legal and social protection on a number of matters, including social security and conditions of employment.

The second convention is much more radical in that it seeks to equalize the protections and opportunities for migrant workers and national workers, including minimum wages, social security, labor rights, association rights, and various other matters. Some of the specific international conventions regarding the construction industry include the Safety and Health in Construction convention of 1988, which sets up the basic standards for protection, handling of injuries, occupational reimbursements, and other related factors.

In the US, the labor rights of illegal workers are protected by federal and state laws, which differ from one state to another. In California, for example, all of the labor laws applied to national workers, and legal migrants also apply to undocumented workers. These include all corresponding safety regulations, pensions, social security investments, insurances, and compensations. However, since employers are obligated by law to terminate any contracts with undocumented workers and report them to the authorities, employers can use it as a bargaining chip in any disputes with their undocumented employees, making their position in the country vulnerable.

In countries like Qatar, Saudi Arabia, and the UAE, the issue of irregular migrants is more prevalent when compared to illegal migration in the US. The majority of migrants come from India, constituting over 1 million in the population of each of the mentioned countries.¹⁷ They typically have the legal documents to work and be employed in the country legally, but suffer from various limitations and institutionalized racism towards migrants.

During the preparation of Qatar for the World Championship, the country opened its gates for many semi-legal workers from India and other countries.¹⁸ The conditions of labor, levels of exploitation, low wages, and standards of living during this project were comparable to those of illegal migrants in the US and other countries. The reason for that was a high competition. India is a country with over two billion citizens, most of whom live below the poverty line. Although workers in Qatar were hired legally, they could be easily replaced. Fearful of losing their position, many are willing to concede to the lower standards of labor and living, in order to keep the job.

Legislative and Ethics Solutions

If we compare the situation in the US with the situation in the GCC countries, there are significant differences. In the US, illegal migrants in construction are hostages of their illegal status. The government does not seek to keep these individuals within their borders, which gives the employers the advantage they need in order to exploit these people and introduce the lower quality of labor, lower payments, worse working conditions, and other limitations. In GCC countries, it is different. The government takes a direct role in the exploitation of irregular migrants by closing its eyes to various violations of the international laws regarding migrants as well as its own labor codes. There is evidence of such a practice being done on purpose, as Qatar is behind schedule in preparing the country for the major sporting event. In order to save time and money, the use and exploitation of the irregular migrants are being sponsored at the highest levels.

Potential legislative solutions in these two situations differ. In order to make illegal migrants in the US more protected and competitive against the local workforce, the very reason why people chose to enter the country illegally must be abolished. As it stands, it is very hard for migrants from Mexico and Latin America to get a working visa into the US.¹⁹ Current administration policies do not provide any incentives for illegal migrants to come out of the shadow either. Therefore, if the registration process and border control were significantly simplified, then the exploitation and poor working conditions would inevitably cease to exist.

At the same time, there are no legislative instruments that could help the situation in Qatar. The purpose of the government is to ensure that migrant and labor laws put in place are being followed. If the government is interested in breaking these laws to achieve certain geo-economic objectives, then legislation does not matter, as it would simply not be applied.²⁰ The main incentive behind Qatar’s violations of migrant worker rights is the need to complete the construction of stadiums and other facilities in time. If the World Soccer Federation demands Qatar to adhere to its own laws and threaten to withdraw from the tournament otherwise, it would be possible to make the country fall in line.²¹ Only the elimination of institutionalized racism and the adoption of ethical frameworks would help improve the situation for migrant workers otherwise.

Conclusion

The situation with illegal migrants in the construction sector is dire. Due to a lack of any social safety nets, legal protection, and the relative inefficiency of labor laws, they are exploited by employers, which leads to high mortality rates, injuries, poor payment, and other domestic issues. Although there are numerous statutes in place, such as the Migration for Employment Convention and Migrant Worker Convention, as well as numerous domestic policies for protecting migrants, it is impossible to seek protection without revealing one’s illegal status, which would get an illegal migrant deported from the country. On the other hand, governments often overlook the violation of domestic regulations and encourage illegal or irregular migrant influx because of their own interests and reasons. As a result, illegal migrants suffer due to the fact that the very entity created to supervise the laws being upheld is against them.

In a globalized economy, ideas of borders and nationalities are starting to blur. Many illegal migrants seek to escape the poverty and misery of impoverished, failed, or tyrannical states. It is immoral to prevent people from trying to provide for themselves and their families. The concept of illegal migration should be abolished, and the procedures for crossing borders should be greatly simplified. That way, a migrant worker would have all the rights and opportunities when compared to a local, meaning that the employers would not be able to discriminate and purposefully choose migrants over locals. This would result in a gradual increase in wages and fair competition for jobs, leading to long-term growth and stability in the sector.

Endnotes

1. Nadine N. Abu-Shaban. Reflection on Labor Law – Construction Industry Between Text and Application. Global Journal of Politics and Law Research 3, 2, (2015), 55-70.
2. Jill E. Family. Immigration Law Allies and Administrative Law Adversaries. Georgetown Review 32, 1 (2017), 99-126.
3. Rene D. Flores and Ariela Schachter. Who are the “Illegals”? The Social Construction of Illegality in the United States. American Sociological Review 83, 5 (2018), 839-868.
4. Cuman R. Abrar, et al. Emic Perspectives on Brokering International Migration for Construction from Bangladesh to Qatar. Migrating Out of Poverty 49 (2015), pp. 1-22.
5. Ib.
6. Ib.
7. Phillipe Fargues and Nasra M. Shah. Skillful Survivals: Irregular Migration to the Gulf. (Gulf Research Centre Cambridge, 2017).
8. Prakash, C. Jain and Ginu Z. Oommen. South Asian Migration to the Gulf Countries: History, Policies, Development. (Routledge India, 2015).
9. Muhhamad W. Khan., et al. On The Labor Rights the Effects of Corruption in
10. Construction. 14th International Conference on Statistical Sciences 29 (2016), 355-362.
11. Jasmine Kerrissey and Jeff Schuhrke. Life Chances: Labor Rights, International Institutions, and Worker Fatalities in the Global South. Social Forces 95, 1 (2016), 191-216.
12. Donya Mehran. Exploring the Adoption of BIM in the UAE Construction Industry for AEC Firms. Procedia Engineering 145 (2016), 1110-1118.
13. Ib.
14. Ib.
15. Lori A. Nessel. Instilling Fear and Regulating Behavior: Immigration Law as Social Control. Georgetown Law 31, 3 (2017), 525-559.
16. Natalie V. Schwatka, et al. Defining and Measuring Safety Climate: A Review of the Construction Industry Literature. Annals of Occupational Hygiene 60, 5 (2016), 537-550.
17. Noah Smith. Against Walls: How President Trump’s Walling Initiatives Undermine American Exceptionalism. Georgetown Law 31, 3 (2017), 623-650.
18. Nik Theodore. Rebuilding the House of Labor: Unions and Worker Centers in the
19. Residential Construction Industry. WorkingUSA 18, 1 (2015), 59-76.
20. Ib.
21. Conor Trombetta. The Undocumented Workers’ Dilemma: Improving Workplace Rights for Undocumented Workers Through Labor Arbitration and Collective Bargaining. Georgetown Law 32, 1 (2017), 127-150.
22. Yu Y. Wang. The Labor Dispute in Private Enterprises. 2017 International Conference on Manufacturing Construction and Energy Engineering (2017), 669-673.
23. Hafiz, A. K. Zahoor, et al. An Analytical Review of Occupational Safety Research in Pakistan Construction Industry. International Journal of Construction Project Management 8, 2 (2016), 125-140.

Works Cited

Abu-Shaaban, Nadine N. “Reflection on Labor Law – Construction Industry Between Text and Application.” Global Journal of Politics and Law Research, vol. 3, no. 2, 2015. pp. 55-70.

Abrar, Cuman R., et al. “Emic Perspectives on Brokering International Migration for Construction from Bangladesh to Qatar.” Migrating Out of Poverty, vol. 49, 2015, pp. 1-22.

Family, Jill E. “Immigration Law Allies and Administrative Law Adversaries.” Georgetown Law, vol. 32, no. 1, 2017, pp. 99-126.

Fargues, Phillipe, and Nasra M. Shah. Skilful Survivals: Irregular Migration to the Gulf. Gulf Research Centre Cambridge, 2017.

Flores, Rene D., and Ariela Schachter. “Who are the “Illegals”? The Social Construction of Illegality in the United States.” American Sociological Review, vol. 83, no. 5, 2018, pp. 839-868.

Jain, Prakash C., and Oommen, Ginu Z. South Asian Migration to the Gulf Countries: History, Policies, Development. Routledge India, 2015.

Khan, Muhhamad W., et al. “On the Labor Rights the Effects of Corruption in Construction.” 14th International Conference on Statistical Sciences, vol. 29, 2016, pp. 355-362.

Kerrissey, Jasmine, & Jeff Schuhrke. “Life Chances: Labor Rights, International Institutions, and Worker Fatalities in the Global South.” Social Forces, vol. 95, no. 1, 2016, pp. 191-216.

Mehran, Donya. “Exploring the Adoption of BIM in the UAE Construction Industry for AEC Firms.” Procedia Engineering, vol. 145, no. 2016, pp. 1110-1118.

Nessel, Lori A. “Instilling Fear and Regulating Behavior: Immigration Law As Social Control.” Georgetown Law, vol. 31, no. 3, 2017, pp. 525-559.

Schwatka, Natalie V., et al. “Defining and Measuring Safety Climate: A Review of the Construction Industry Literature.” Annals of occupational Hygiene, vol. 60, no. 5, 2016, pp. 537-550.

Smith, Noah. “Against Walls: How President Trump’s Walling Initiatives Undermine American Exceptionalism.” Georgetown Law, vol. 31, no. 3, 2017, pp. 623-650.

Theodore, Nik. “Rebuilding the House of Labor: Unions and Worker Centers in the Residential Construction Industry.” WorkingUSA, vol. 18, no. 1, 2015, pp. 59-76.

Trombetta, Conor. “The Undocumented Workers’ Dilemma: Improving Workplace Rights for Undocumented Workers Through Labor Arbitration and Collective Bargaining.” Georgetown Law, vol. 32, no. 1, 2017, pp. 127-150.

Wang, Yu Y. “The Labor Dispute in Private Enterprises.” 2017 International Conference on Manufacturing Construction and Energy Engineering, 2017, pp. 669-673.

Zahoor, Hafiz, A. K, et al. “An Analytical Review of Occupational Safety Research in Pakistan Construction Industry.” International Journal of Construction Project Management, vol. 8, no. 2, 2016, pp. 125-140.