New Protections to Save Undocumented Workers from Retaliation

Workplace retaliation

The Department of Homeland Security (DHS) has announced a new system to protect the workplace rights of undocumented workers, shielding noncitizen workers against immigration-related retaliation from employers.

Workers who claim their labor rights have been violated will now be able to access a streamlined deferred action request process. This new type of deferred action is specifically intended to protect undocumented workers from employers threatening their jobs due to their immigration status. This includes workers who have been victims of or have witnessed labor rights violations but are facing intimidation or threat of retaliation from their employers.

What the Changes Mean for Workplace Rights

According to DHS, these changes are part of advancing the Biden Administration’s commitment to improving workplace conditions by enabling all workers, including noncitizens, to assert their legal rights. Alejandro N. Mayorkas, Secretary of Homeland Security, said in a statement that “unscrupulous employers who prey on the vulnerability of noncitizen workers harm all workers and disadvantage businesses who play by the rules.”

He said DHS is aiming to hold these predatory employers accountable by encouraging all workers to assert their rights, report violations they have experienced or witnessed, and cooperate with investigators. Officials say workers are often afraid to report their employers’ legal violations or to cooperate with investigations because they are worried about getting fired or deported.

Agencies tasked with enforcement of labor and employment laws count on the cooperation of workers in their investigations, DHS stated in a news release about the new process. In addition to deferred action, DHS will also provide a single intake point for requests from noncitizen workers. This centralized process, officials say, will allow them to efficiently review these time-sensitive requests, provide additional security to eligible workers on a case-by-case basis and support the mission of labor agencies.

Until now, DHS has considered requests for deferred action submitted by noncitizen workers who fall within the scope of a labor agency investigation or enforcement action. However, non-citizens will now be able to submit such requests to U.S. Citizenship and Immigration Services (USCIS) through a central intake point established specifically to support labor violation investigations and enforcement efforts. Workers will be able to visit for more information in English and Spanish and to submit requests.

Labor Violations Disproportionately Affect Immigrants

Just like U.S. citizens, any noncitizen whose job is covered under the Fair Labor Standards Act has the right to be paid overtime after 40 hours and the minimum hourly wage. However, according to The Center for Public Integrity, it is sadly common for immigrant workers, documented or not, to face employer intimidation when they assert their rights. Such retaliation is illegal. The U.S. Department of Labor, which operates in all states, does not ask victims of suspected wage theft about their immigration status.

However, an analysis of Labor Department and U.S. Census Bureau data found that industries with higher percentages of foreign-born workers had higher rates of wage theft. Nationally, 16% of U.S. workers are foreign-born. But, 42% of all workers performing cut-and-sew garment assembly are immigrants. That industry also had the second highest rate of federal wage-violation cases over the last 15 years, the Center for Public Integrity found. Other industries with significant numbers of immigrant workers and wage-theft issues include agriculture, building maintenance, hotel work, restaurant, and other food services. In some parts of the country, these issues are also found in construction, nursing homes, warehouses, and car washes.

Protecting the Most Vulnerable Workers

The deferred action essentially provides a two-year period of protection against deportation in addition to the possibility of securing employment authorization so workers are not pushed into the black market where they are forced to work under the table. This new move also points to the long-existing tension between labor and immigration policies in this country. On one hand, undocumented workers or noncitizens are told they have rights. But on the other hand, they are told they are not permitted to work and could be deported. Because the U.S. labor system is “claims-driven,” which means it only operates when a complaint is lodged, the system doesn’t really work unless people are willing to come forward and report labor violations.

One example of these tensions is the arrest of 389 undocumented workers during a 2008 raid on a meat-processing plant in Iowa. Many of the workers were charged with using false documents for their employment. However, Labor Department officials said the raid disrupted investigations over labor violations at the plant.

It is also important to note that while these changes are geared toward workers who are not authorized to work in the U.S., they will help all workers regardless of immigration status. When the rights of the most vulnerable are protected, it is also likely that workplace conditions for others who are native-born or documented will improve. There are about 8 million undocumented or unauthorized immigrants in the U.S. labor force. Studies and surveys show that they are also the most vulnerable to exploitation, workplace violence, and dangerous working conditions.

If you are the victim of wage theft or other violations and fear retaliation from your employer due to your immigration status or other factors, an experienced California employment lawyer can help you better understand your legal rights and options. Being undocumented does not prevent you from holding employers accountable for shady practices.

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