E.g., 12/13/2019
E.g., 12/13/2019

“Cubicle Activism”: Companies Face Growing Demands from Workers to Cut Ties with ICE and Others in Immigration Arena

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“Cubicle Activism”: Companies Face Growing Demands from Workers to Cut Ties with ICE and Others in Immigration Arena

Protesters outside GEO Group detention facility

Protesters gather outside a GEO Group detention facility. (Photo: Justin Valas)

From Amazon and IBM to financial institutions and consulting firms, corporations are facing increasing employee activism in response to their involvement with government agencies and others on the front lines of implementing the Trump administration’s immigration policies. Arguing that business interests should not supersede values and ethics, activist workers are demanding that their employers sever relationships with U.S. Immigration and Customs Enforcement (ICE) and others in and out of government that are instrumental in executing policies they find immoral. While this “cubicle activism” has succeeded in a few cases, it has yet to markedly change the behavior of corporate America.

In one recent example, 1,495 employees signed a petition in August urging Google not to bid on an upcoming U.S. Customs and Border Protection (CBP) cloud computing contract, stating they “refuse to be complicit” in working with agencies “perpetrating a system of abuse and malign neglect” at the U.S.-Mexico border. The move angered CBP Acting Commissioner Mark Morgan, who called the rhetoric “absolutely irresponsible” and “misinformed.”

Employee-driven campaigns on issues of social justice and cultural norms have in the past compelled companies and institutions to action. Starting in the 1990s, gay and lesbian workers, for example, pressured their companies to provide domestic partner benefits in the absence of legal protections. Other companies followed suit throughout the 1990s and 2000s, spurred on by a major swing in public opinion in favor of LGBT rights.

Unlike prior examples of employee activism, the current trend is not aimed at altering policies that affect workers’ personal lives, but instead focuses on national-level actions targeted at other populations. This activism is occurring against a backdrop of wider protests by the public and activists against the Trump administration in a range of issue areas, from the environment to gun control and foreign policy.

However, many of the corporate relationships that are the subject of both employee and wider public protests were forged, without fanfare, during prior administrations. What has changed? In the hyperpolarized atmosphere regarding immigration, companies are being pushed into the public space and face considerable pressure to take a stand. These protests have been particularly vocal when children have been the targets of immigration enforcement, and when media attention on them is intense.

Today’s employee activism on immigration takes a page from the student movement, which began in the 1980s, demanding universities strip their investment portfolios of countries supporting apartheid in South Africa. Today’s protests are focused on divestment from fossil fuel industry stocks. More than 150 campuses around the world have committed to divestment, including more than 40 in the United States. But universities have historically been a natural and familiar home for political protest, while the halls of corporate America have not been, making the likelihood of success for employee activists perhaps both less likely and riskier. 

It remains to be seen whether this cubicle activism, as a Reuters columnist dubbed the phenomenon, will drive corporate America away from working with agencies involved in immigration policies. On one hand, the pressure on financial institutions to divest from private prisons (including those used in immigration detention) has been somewhat effective, instigating a drop in the stock price of two major private prison companies, CoreCivic and GEO Group. On the other hand, only a handful of employers have bowed to employees’ demands to cancel contracts with immigration enforcement agencies, while others have limited themselves to public expressions of support. This article situates employee activism during the Trump era as a product of past successful employee actions and within a broader wave of public discontent with the administration’s immigration priorities, and analyzes its successes and failures.

Three Waves of Employee Activism on Immigration

Broadly speaking, organized employee protests against the administration’s immigration actions came in three waves: soon after the election and the issuance of travel bans immediately following President Trump’s inauguration in 2017; at the peak of family separation at the U.S.-Mexico border in summer 2018; and when children were detained in abhorrent conditions by CBP in 2019.

The First Wave: 2016-17

The first signs of employee activism on immigration were seen almost immediately after the election—mostly in generalized reactions to the anti-immigration rhetoric Trump used during the campaign. In December 2016, more than 2,800 tech workers signed a pledge to stand with immigrants and Muslim Americans, promising to handle data conscientiously in the face of threats to scale up deportations and build a “Muslim registry” (and to refuse to build such a registry if it came to that). This pledge seems to have set the stage for what would follow.

Several days after the pledge was first reported, IBM employees circulated a petition criticizing the company’s CEO for writing Trump a supportive letter and asking that the company respect their right not to participate in government contracts that violate civil liberties. Unlike future employee activism in the Trump administration, the petition also included traditional worker demands, such as changes to severance policies.

Within a week of taking office, Trump issued his first travel ban, a policy with direct impact on foreign students and high-skilled temporary foreign workers, which resonated with tech employees. This re-energized protests, including by corporate leaders. In February 2017, about 730 people, most of whom said they worked at Oracle, signed an online petition asking the company’s leadership to join a tech industry amicus brief in one of the lawsuits opposing the travel ban. Later that year, leadership of several tech companies took a stand against the Trump administration’s cancellation of the Deferred Action for Childhood Arrivals (DACA) program. More than 60 businesses, trade associations, and other organizations banded together in the Coalition for an American Dream to support legislation that would provide a permanent solution to the plight of Dreamers (unauthorized immigrants brought to the United States by their parents).

The Second Wave: 2018

The first campaign by employee activists specifically demanding that their companies cut ties with ICE and CBP started when the administration’s zero-tolerance policy for prosecuting illegal border crossers led to the separation of children from their parents in spring and summer 2018. Amid massive national and international outcry over the separation of what is now known to be more than 4,000 children from their families, campaigns took place at tech companies such as Amazon, Microsoft, and Salesforce, and consulting companies Deloitte and McKinsey, as well as among students and faculty at Johns Hopkins University, one of only six universities or university systems at the time to have contracts with ICE.

This activism was largely framed in moral terms, with Microsoft employees arguing, for example, that “Microsoft must take an ethical stand, and put children and families above profits.” The campaigns also contended that working with ICE or CBP meant complicity in family separation (even though ICE, for its part, had almost no involvement in family separation). Deloitte employees urged leadership to consider “how its services and offerings to these agencies contribute to ongoing injustice.”

The Third Wave: 2019

The protests died down as the administration ended its blanket policy of family separation but resumed in summer 2019, as news media reports detailed a new crisis: horrific overcrowding, lack of sanitation or access to items as basic as toothbrushes or soap, and extended detention for families with children at under-resourced Border Patrol stations.

This third wave of protests was much broader, encompassing not just ICE, CBP, and private prison companies, but also the Office of Refugee Resettlement (ORR), a Department of Health and Human Services office responsible for the care of unaccompanied child migrants until they are released to a sponsor. Amid rising arrivals at the border and funding inadequacies, ORR faced sharp scrutiny amid reports about children being held in makeshift, non-state-licensed ORR shelters for extended periods of time. To further add to the chaos, the public sometimes conflated the situation with family separation, or confused ORR shelters with CBP detention facilities.

Employees at many corporations responded forcefully, and some of their actions remain ongoing. The main campaigns took place at tech companies Amazon, Google, Palantir, Chef, GitHub, and Microsoft; the public relations firm Edelman; the ad agency Ogilvy; the furniture company Wayfair; and again at Johns Hopkins University. Some campaigns have invoked the values that the companies profess to hold, asserting that doing work for agencies such as ICE, CBP, and ORR violates those values. Google employees reminded leadership of “its commitments to implementing ethical guardrails on its tech,” and Microsoft employees noted that the company “professes to [value] equality and diversity, and is built on the labor of many immigrants. So how can we continue to do business with an organization that endlessly terrorizes this populace?” Few companies, however, during either the second or third wave of protests, met employees’ demands to sever ties.

Beyond Employee Activism

Pressure on banks to divest from private prisons has been another central area of activism. Divestment has come less in response to pressure from employees and more from outside activists and shareholders. In August 2016, toward the end of the Obama administration, the Justice Department announced plans to reduce and eventually end its use of private prisons. The Trump administration reversed that policy, but the campaign to end private prisons has remained popular among liberals. Three top Democratic presidential contenders—Joe Biden, Elizabeth Warren, and Bernie Sanders—favor abolishing private prisons. And the governor of California on October 11 signed a bill into law that will eliminate all private prisons in the state by 2028.

At this writing, at least eight major banks (JPMorgan Chase, Wells Fargo, Bank of America, SunTrust, BNP Paribas, Fifth Third Bancorp, Barclays, and PNC) have committed to divest from private prisons. Forbes reported that all publicly known banking partners providing lines of credit and term loans to GEO Group have promised to divest, though GEO Group claims it has nonpublic partners as well. And although five banks have continued to finance CoreCivic, Fitch Ratings has downgraded the company’s credit rating to negative. Sustained activist pressure and a political tide turning against private prisons have seemingly been successful, yet it remains to be seen if the pressure will affect these companies’ bottom lines in the long term.

What’s Behind Cubicle Activism?

Several factors help explain the recent trend in employee protests, including generational makeup: as of 2017, Millennials comprised 35 percent of the workforce, the largest share of any generation. Millennials tend to care more about their employers’ social impact. A 2017 Povaddo survey found that 57 percent of employees of the largest U.S. companies felt their employers should more actively address societal issues and estimated that about 15 percent of the workforce could be categorized as “employee activists.” That share is higher among Millennials, 26 percent of whom were categorized as employee activists.

This generation is also more likely to have favorable views of immigration. According to a January 2019 Pew Research Center survey, 75 percent of Millennials responded that “immigrants strengthen our country because of their hard work and values”—compared to 63 percent of Generation Xers and 52 percent of Baby Boomers, who make up 33 percent and 25 percent of the workforce respectively. A 2018 Morning Consult survey found that 23 percent of Millennials reported they would like a company less or much less if that company advocated for stricter immigration policy, while only 7 percent would like it more or much more.

The concentration of employee activism in tech companies has its own set of explanations. The first is the values that these companies have built into their own brands. “What’s happening is employees are taking these values relatively seriously. When these mission statements were designed, I don’t think they were necessarily thinking of employees using that to enact social change. They were using them to motivate people to work harder,” Aaron Chatterji, a professor at Duke University, told the Washington Post. In addition, tech companies often employ immigrants. A Seattle Times analysis found that 71 percent of IT workers in Silicon Valley were foreign born; in 11 other tech hubs, the share ranged from 15 to 50 percent.

And finally, employee activism on immigration may be spurred by activism around other issues. The first successful instance of employee activism in the Trump era occurred in June 2018, when Google decided not to renew its contract to work on a U.S. military artificial-intelligence project, Project Maven, after a handful of employees resigned in protest and more than 4,000 signed a petition. The Google employees achieved their goal just as media attention on family separation reached its peak.

Measuring Impact

But employees’ protests have not always met with success. Of the protests mentioned here, only three have succeeded: at McKinsey in July 2018, Edelman in July 2019, and Chef in September 2019. In the case of McKinsey, there were other extenuating circumstances. In June and July 2018, the same time as the employee activism on immigration was gaining momentum, McKinsey was also receiving blowback after the New York Times’ revelation that the company was involved in a massive government corruption scandal in South Africa. The company was thus keen to improve its public image. The Johns Hopkins students and faculty also succeeded in getting the university to stop working with ICE (but only after a month-long sit-in in spring 2019 that culminated in seven arrests).

Public responses from companies that decided to retain contracts with government agencies vary. Wayfair and Palantir maintained that as businesses it was not their role to judge the values of their clients. Others, such as Microsoft, Deloitte, and Ogilvy, stated that contributing to actions such as family separation would be contrary to their values, but that their contracts with the enforcement agencies were unrelated. And Salesforce kept its relationship with CBP but announced it would donate $1 million to immigrant-serving nonprofits, a sum apparently more than the value of the contract. GitHub likewise allowed ICE to continue using its product, but the CEO said the company would donate $500,000 to nonprofits, with the same explanation: this exceeded the value of the ICE purchase.

So the successes and failures of these activist campaigns are mixed. Donations to immigrant-service organizations are uncomplicated ways to respond to employees and appear compassionate.

The Future of Employee Activism on Immigration              

Given generational attitudes, and growing Millennial and Generation Z dominance of the workforce, it is likely that this trend in employee activism will continue, especially at moments of intense media coverage of particular policies. But so far, most companies have made changes only in the margins, without compromising their core business interests. If this response starts to shift, it could be significant. At a time when important government functions are increasingly carried out by the private sector, corporations could have significant leverage on the actions of government agencies. If employees become more strategic in putting pressure on their employers, they will have increasing leverage as well.

National Policy Beat in Brief

DHS Public Charge Rule Blocked in Five Courts. Federal district judges in California, New York, and Washington state on October 11, and in Illinois and Maryland on October 14, temporarily blocked the Department of Homeland Security (DHS) public-charge rule scheduled to go into effect on October 15. The New York, Maryland, and Washington judges enjoined the rule from going into effect nationwide, while the Illinois judge prevented it from being applied to anyone in Illinois, and the California judge prevented it from being applied to anyone in the states involved in that lawsuit (California, Washington, DC, Maine, Oregon, and Pennsylvania). The judges found that DHS’s definition of public charge was contrary to that of Congress, which classified someone as a public charge only if he or she was likely to be permanently dependent on the government. While the government is likely to appeal the rulings, for now immigrants applying for green cards, in or outside the United States, will not be subject to a test to determine whether they are likely to use government benefits in the future.

However, immigrants applying for admission from outside the United States could be subject to this test soon. The State Department on October 11 published an almost identical rule for implementation by consular officers (who would not have been subject to the DHS rule). That rule was not covered by any of the lawsuits, and technically could have gone into effect October 15. However, the State Department said it would not implement the test until an associated new form is approved, which is available for public comment until December 23.

Refugee Cap for FY 2020 Likely Set at 18,000. The Trump administration announced on September 26 that it would set the fiscal year 2020 ceiling for refugee admissions at 18,000, the lowest since the establishment of the modern refugee system in 1980. Of the 18,000 spots, 5,000 will be reserved for refugees fleeing religious persecution, 4,000 for Iraqi translators who assisted U.S. forces, and 1,500 for refugees from El Salvador, Guatemala, and Honduras. Reporting indicates that the UN High Commissioner for Refugees, which refers most refugees for U.S. resettlement, does not have the capacity on the ground in the three Central American countries to reach the 1,500 target. Before the cap becomes official, the administration must engage in consultations with Congress. President Trump also signed an executive order on September 26 that requires states and localities to provide written consent for refugees to be resettled there. Government agencies were given 90 days—until December 25—to come up with a process to implement this requirement.

Presidential Proclamation Blocks Admission of Immigrants without Health Insurance. On October 4, Trump issued a proclamation requiring potential immigrants to show that they would be covered by health insurance within 30 days of arrival in the United States, or that they had sufficient means to cover any “reasonably foreseeable” medical costs. Importantly, the proclamation does not consider people who would have access to Medicaid or insurance purchased with Affordable Care Act subsidies as being covered by insurance. The Migration Policy Institute estimates the proclamation may render ineligible two-thirds of applicants for immigrant visas from abroad, mostly family immigrants. The policy goes into effect November 3. The proclamation does not apply to those adjusting to permanent residence (also known as a green card) from within the United States, as well as refugees and other humanitarian entrants.

Some U.S. Aid Restored for El Salvador, Guatemala, and Honduras. After cutting most aid to El Salvador, Guatemala, and Honduras in June, the State Department announced on October 16 that it would restore a portion of that funding, reportedly $143 million. The administration had cut the aid because it claimed the three governments were not doing enough to prevent migrant flows to the United States. It resumed funding at least in part due to those governments’ willingness to sign asylum cooperation agreements with the United States, which, if implemented, would allow the United States to send asylum seekers who arrive at the U.S.-Mexico border to those countries and make their claims there instead. The State Department said the released funding would go toward improving security, efforts to create economic opportunities, promotion of good governance, and asylum system capacity building.

Federal Judge Finds Trump National Emergency Declaration Unlawful. On October 11, a U.S. district judge for the Western District of Texas ruled unlawful the February 2019 national emergency declaration that allowed the Trump administration to reprogram military construction funds to border barrier construction. The judge said that the action violated appropriations legislation in which Congress chose to provide only $1.4 billion for replacement fencing in the Rio Grande Valley, and prevented the money from being used to fund barrier construction elsewhere. The judge has not yet officially blocked the construction but is poised to do so after deciding on the scope of the relief. The Supreme Court in July 2019 stayed another district judge’s injunction on border wall funding, at least partly because the justices found that plaintiffs did not have standing to challenge an appropriations act.

Federal Judge Blocks Expansion of Expedited Removal. On September 27, a U.S. district judge in Washington, DC issued a preliminary injunction blocking DHS from expanding expedited removal, a form of administrative deportation in which immigrants can be removed without a proceeding before an immigration judge. Since 2004, DHS has been authorized to carry out expedited removals of unauthorized immigrants apprehended within 100 miles of a U.S. land border, if they could not show they had been in the country for more than 14 days. But on July 23, DHS issued a regulation that would allow it to use expedited removal throughout the United States, against unauthorized immigrants who could not demonstrate that they had been in the country for at least two years. Although the rule was effective immediately, it still had not been implemented by the time the judge enjoined it in September. The judge found that the challengers in the lawsuit were likely to succeed on their claims, that there should have been a period for public comment before the rule went into effect, and that the issuance of the rule was arbitrary and capricious under the Administrative Procedures Act.

Federal Judge Narrows ICE’s Ability to Issue Some Detainers. On September 27, a federal district judge for the Central District of California issued a permanent injunction severely limiting Immigration and Customs Enforcement’s (ICE) ability to use detainers. ICE uses detainers to request that state and local law enforcement agencies detain people who ICE believes are removable noncitizens past their release date so that ICE can pick them up and eventually remove them. The judge ruled that ICE agents in the Central District of California may not issue detainers to “state and local law enforcement agencies in states where there is no explicit state statute authorizing civil immigration arrests on detainers,” and that they may not issue a detainer based solely on searches in federal databases that indicate that the potential subject of the detainer is removable. The databases often contain erroneous information, and thus do not always provide probable cause of removability, the judge found. Although the injunction applies only to ICE agents in the Central District, it will have a close-to nationwide effect because ICE’s Pacific Enforcement Response Center (PERC) is in the district. PERC issues detainers 24 hours a day for the Central District, as well as “after-hours” detainers for 42 states and two U.S. territories.

State/Local Policy Beat in Brief

California Governor Signs Laws Banning Private Prisons, Expanding Rights and Protections for Unauthorized Immigrants. California Governor Gavin Newsom on October 11 signed a bill into law banning private prisons—including immigration detention facilities. As of January 2020, the state’s Department of Corrections will not be able to enter into or renew any private prison contracts, and by January 2028, must end all private prisons in the state.

Newsom also signed five more bills into law this month that bolster rights and protections for immigrants in the state, including providing unauthorized immigrant residents of California who are enrolled in graduate programs with access to a state student loan program and allowing noncitizen residents to serve on state boards and commissions. Another bill prevents users of California’s telecommunications database, beginning in January 2020, from using information from the database, other than criminal history, for immigration enforcement; and beginning in July 2021, requires explanations to be submitted with requests for information other than criminal history. The fourth bill prohibits civil arrests (including immigration arrests) of people attending proceedings at state courthouses. And the final bill requires California Community Colleges and the California State University to hire “Dreamer Resource Liaisons” to assist unauthorized immigrant students, beginning in the 2020-21 academic year. Newsom vetoed a bill that would have allowed the attorney general to investigate deaths at immigration detention centers in the state, arguing the priority should be eliminating these centers. 

  • Text of AB-32, An Act to add Section 5003.1 to, and to add Title 9.5 (commencing with Section 9500) to Part 3 of, the Penal Code, relating to detention facilities
  • Text of SB-354, An Act to amend Sections 70032, 70033, and 70034 of the Education Code, relating to postsecondary education
  • Text of AB-1747, An Act to amend Section 15160 of the Government Code, relating to law enforcement
  • Text of AB-668, An Act to add Section 43.54 to the Civil Code, and to amend Section 177 of the Code of Civil Procedure, relating to courthouses
  • Text of AB-1645, An Act to add Section 66021.8 to the Education Code, relating to student support services
  • NBC News article on the private prison law
  • Los Angeles Times article on the slate of laws

Pennsylvania Law Makes E-Verify Mandatory for Construction Industry. A new law went into effect in Pennsylvania that will require all employers in the construction industry to check their employees’ authorization to work using the E-Verify system. The House and Senate passed the bill on September 25, and because the governor neither signed nor vetoed it, it became law on October 7, but will go into effect on October 7, 2020. Previously the state required construction industry employers to use E-Verify only for work on publicly funded projects that cost more than $25,000.

  • Text of HB-1170, An Act prohibiting the employment of unauthorized employees; requiring construction industry employers to verify the Social Security numbers of employees; and imposing penalties
  • Associated Press article on the law

Federal Judge Upholds Florida Anti-Sanctuary Law. A federal district judge for the Southern District of Florida on September 30 upheld most of a state law that requires state and local law enforcement agencies to comply with ICE detainers, and prohibits policies that bar state and local officials from notifying ICE before a detainee’s release, ICE agents from accessing state and local detainees for interviews, or localities from participating in 287(g) programs. The bill also allows the governor and attorney general to sue agencies that do not comply with the law, and potentially remove from office officials who continue to violate these terms. The judge did strike down a portion of the law that would have allowed state and local law enforcement agents to transport detainees across state lines to transfer them to ICE custody. Most of the law took effect on July 1, but the provisions that allow the governor and attorney general to enforce compliance took effect on October 1.

Nashville Mayor Overturns Executive Order Seen as Sanctuary Policy. The Democratic mayor of Nashville, John Cooper, rescinded an immigration executive order that his predecessor, David Briley, signed in September. The order stated that the city would challenge a state law that blocked jurisdictions with policies limiting cooperation with federal immigration authorities from receiving state funding. It also set out a series of limitations the city would put in place once the state law was overturned. The new mayor said he overturned the order because the city was at risk of losing state grants. Instead, he said, he would form a task force to track requests city agencies receive from ICE and to make recommendations regarding the city’s relationship with the federal agency.

Washington, DC City Council Passes Emergency Legislation Limiting Cooperation with ICE. The DC City Council on October 8 unanimously passed emergency legislation that prohibits local law enforcement from holding people past their release date based on an ICE detainer, sharing information about a detainee’s release date with ICE, or allowing ICE to access DC-run detention facilities. Emergency legislation can take effect immediately after the mayor signs it, since it does not need approval from the U.S. Congress. The bill includes exceptions for federal detainees, which were inserted at the last minute, because protecting federal detainees may have caused the city to lose federal reimbursement funds, and emergency legislation may not have a fiscal impact. Mayor Muriel Bowser signed the bill into law on October 23.