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No Servants, No Masters


Brishen Rogers (@BrishenRogers) is Professor of Law at Georgetown University Law Center.

Earlier this week, a Politico piece by Eric Posner (Chicago Law) and Glen Weyl (Microsoft Research) started to bounce around in progressive labor and twitter circles. It’s entitled “Sponsor An Immigrant Yourself,” and proposes  a new “Visas Between Individuals” program through which, they assert, “native workers rather than corporations” could reap the benefits of liberalized immigration.

Weyl has already expressed regrets about the tone and title of the piece, but has said that he “stands by the argument.” Tone and title aside, however, the proposal itself replicates many of the worst aspects of existing guestwork programs – so much so, in fact, that it could relegate many migrants to debt servitude.

Here’s the core of the proposal, in Posner and Weyl’s own words:

Imagine a woman named Mary Turner, who lives in Wheeling, West Virginia. She was recently laid off from a chicken-processing plant and makes ends meet by walking and taking care of her neighbors’ pets. Mary could expand her little business by hiring some workers, but no one in the area would accept a wage she can afford. Mary goes online—to a new kind of international gig economy website, a Fiverr for immigrants—and applies to sponsor a migrant. She enters information about what she needs: someone with rudimentary English skills, no criminal record and an affection for animals. She offers a room in her basement, meals and $5 an hour. (Sponsors under this program would be exempt from paying minimum wage.) The website offers Mary some matches—people living in foreign countries who would like to spend some time in the United States and earn some money. After some back and forth, Mary interviews a woman named Sofia who lives in Paraguay

Sofia, who grew up in a village, has endured hardships that few Americans can imagine. She is eager to earn some money so that she could move to her nation’s capital city and get some vocational training. A few weeks later, Sofia arrives in Wheeling, after taking a one-week training course on American ways. If things don’t work out, the agency that runs the website will find a new match for Sofia, and Mary will find someone new as well.

Each family would be permitted to sponsor up to four migrants through this program, thus boosting their income by $10,000 to $20,000. “The reason,” they explain, “is that migrants to the United States usually increase their wages many times, allowing them to pay as much as $6,000 to hosts for sponsorships.” In addition to dog walking or household labor, Posner and Weyl imagine other uses to which migrants could be put – and here I use the passive voice intentionally – including leasing them out to factories, farms, or other businesses.

Posner and Weyl are surely well-intentioned. The notion that liberalizing immigration (if not in the way the authors propose) would have important poverty-reducing effects on a global scale has strong support in the literature, for example in the work of Dani Rodrik. The authors also want to ensure that the benefits of immigration to extend to non-elites rather than being captured by shareholders of companies that hire immigrants, which is a laudable goal.

But the proposal seems to tolerate or even embrace various practices that labor migration scholars and worker organizations have roundly condemned, including restrictions on migrants’ ability to leave abusive employment relationships, and toleration of migrants’ purchasing the right to enter the country. As a result, the proposal would not actually grant migrants any real freedom to enter and compete in our labor markets. Indeed, many could end up having to pay off a debt through work — which is the legal definition of peonage, or debt servitude.

Let’s start with the right to leave a job, which is perhaps the most important right a worker can have. In the U.S. it is guaranteed by the “employment at will” doctrine, under which workers and employers alike can end a labor contract at any time, for any reason that is not unlawful, with or without notice. Employment at will is, of course, quite controversial. It gives formally equal rights to employers and workers, and is a standing justification for doctrines permitting employers to cut wages or change job responsibilities without notice. If they get fed up, the logic goes, workers can quit. In practice, of course, the rule gives employers enormous power over workers without significant cash reserves – which is to say, the vast majority of workers.

But it is still far better to have the right to quit than to not! One of the biggest problems with guest worker programs around the world – including our own – is that they often deny workers that right. The most notorious is the Kafala system of labor sponsorship in the GCC states, under which guest workers are tied to their employer, and need that employer’s permission even to leave the country. But debt servitude and other very serious labor abuses have been quite common in past U.S. guestworker programs as well, since those programs often permit workers to remain in the country only as long as an employer sponsors them.

Now, in theory, a worker can find a new sponsor under our programs, as well as under Posner and Weyl’s proposal. But is that realistic? If Sofia requests a transfer because she wants a higher wage, or a union, is another family likely to take her in? Or is the agency likely to brand her a troublemaker, remind her that there are literally hundreds of millions of other workers who would gladly take her place, and encourage her to either stick it out or return home?

What’s worse, the proposal suggests that migrants – who, remember, are escaping situations of desperate poverty in Posner and Weyl’s example – would be permitted to pay hosts for sponsorship. The problem, as numerous scholars have pointed out, is that this again substantially increases workers’ vulnerability. A worker with no resources saves up or borrows money to pay a visa broker, and then must work to pay off that debt. That makes it very, very hard to leave their sponsor/employer even if, as in this envisioned system, workers have the formal right to do so. Less scrupulous visa brokers – who many would call “traffickers” – will specifically recruit from particular ethnic communities or villages, and threaten migrants’ family members if they fail to pay back their debts. In fact, as I read the piece, I don’t see anything stopping host families from selling migration spots to the highest bidder, which would only exacerbate such problems.

Posner and Weyl suggest that this program is akin to the au pair program, and there are some similarities. They’re correct that the au pair program is essentially a “nanny migrant-labor program used by upper-middle class American families.” But – for reasons that I had thought were obvious – au pair host families have no right whatsoever to rent out their au pairs to others, nor to accept payments of any kind from au pairs. Nor do the sponsors of workers under our other guest-worker programs. And even without that right, those programs have far too often involved very low wages, forced overtime, and even debt servitude.

There are empirical issues here as well – if the workers can’t move among jobs, how are they going to “increase their wages many times” – but let’s put those to the side. There is a substantial literature on temporary migration programs, and the problems with them, as summarized above, do not generally involve subtle moral judgments. There are also many reform proposals that seek to ensure fairness to migrants, generally by ensuring they are not denied basic rights under labor and employment laws. What, then, could justify a new visa program that doesn’t just replicate these myriad problems, but also creates a few more?

Extreme faith in markets, it seems. From what I can tell, the authors see markets as an engine of equality. They want labor markets that more people can enter, and product markets with more opportunities for entrepreneurship. Put aside for now the deeply contested empirical and moral question of the extent to which unchecked market ordering is consistent with egalitarianism, given its tendency to concentrate wealth and power in a few hands. If one is committed to fair market access, this proposal does not deliver it. Perhaps Posner and Weyl will revise it.

There is more. It’s worth recalling that the many forms of unfree labor in our history – chattel slavery, indentured servitude, various forms of sharecropping, and of course prison and convict labor – were not just economic and social constructs, but also legal orders. Sharecropping was instantiated through contracts, often entered into by individuals denied full citizenship under Jim Crow and segregation laws. The criminal justice system meted out convict labor as the legally prescribed punishment for a host of crimes – if without much Due Process by today’s standards – and allowed convict laborers to be legally rented out to third parties on terms that would be unenforceable against “regular” workers.

Nobody is advocating a return to such practices, of course. But it is chilling to think how easily a new sort of lawful indentured servitude could be built out of the legal tools ready at hand today – restricted visas, sponsorship payments, rights to lease out the labor of others, online labor platforms, and of course freedom of contract.