New Process Gives Undocumented Workers Legal Status to Report Employer Abuse


My family lived in Albany, New York, 15 years ago, when our teenage sons were toddlers. On nights when kids and jobs got overwhelming, there weren’t many food delivery options: just pizza and a pan-Asian restaurant named Ichiban.

Years later, I learned some ugly truths about our onetime favorite sushi spot. A former worker had sued Ichiban for wage underpayments. The restaurant retaliated against him by tipping off immigration. The worker was detained by ICE in the middle of a deposition lunch break, and sent to a Buffalo detention center shortly thereafter.

This scenario isn’t uncommon. Exploitative bosses have long weaponized immigration laws to scare their workers into silence. In 2019, a Boston construction worker applied for workers’ compensation after an injury from falling from a ladder. He was detained by ICE immediately following a meeting about his case at his former employer’s office, an instance of unlawful retaliation. The same year, a California dairy worker sued his employer for unpaid wages; the dairy’s attorney called ICE ten weeks before trial, seeking to get the worker deported. It wasn’t the only time this attorney had made such a call. Not surprisingly, research has shown that fear of deportation reduces immigrant workers’ reporting of labor violations.

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Fortunately, the Department of Homeland Security (DHS) earlier this month announced a new process that could prevent some of these situations. The agency has set up a system for federal, state, and local government agencies to request temporary legal status for workers who are witnesses or potential witnesses in workers’ rights enforcement cases.

This process, which worker advocates have long sought, should bolster labor law compliance and prevent employers from misusing immigration enforcement to thwart workplace justice. “These DHS protections will take immigration enforcement off the table during labor disputes, and hold abusive employers accountable for sacrificing worker safety and wages in the name of profit,” explained Jessie Hahn, a National Immigration Law Center attorney who has advocated for this guidance for years.

The new DHS development does not just help immigrants, but all workers. Threats of immigration enforcement have long hampered immigrant workers’ ability to speak out. Employers know this, and the worst among them leverage workers’ fear of deportation to exploit undocumented workers by paying subminimum wages, providing dangerous workplace conditions, and avoiding tax and other legal obligations. Not surprisingly, immigrant workers have disproportionately high rates of wage theft and workplace fatalities.

When employers pay subminimum wages to immigrant workers afraid to report violations, it creates downward pressure on working conditions for everyone. Law-abiding employers end up lowering their own wages, as they struggle to compete with bottom-feeders whose lawlessness gives them an unfair competitive advantage. When all workers can speak up, organize, and exercise their labor rights without retaliation, everyone benefits—except maybe bottom-feeder scofflaws and corporate oligarchs.

Of course, workers of all backgrounds face far too much illegal employer retaliation when they organize or assert their rights. Such reprisals affect not only the individuals involved, but also serve as a cautionary tale, chilling co-workers, neighbors, and the community. These already-problematic concerns about retaliation are intensified when workers fear not only discharge but also deportation.

The new DHS development does not just help immigrants, but all workers.

Immigration is, of course, a divisive issue in the United States, touching on fraught issues related to vastly divergent visions about national identity. Indeed, recent announcements by the Biden administration on asylum seeker restrictions and other immigration policies led to criticism from immigrant advocates and more than 70 Democratic members of Congress from the left, and a lawsuit by almost all of the Republican attorneys general on the right. Perhaps this is why it has sometimes seemed that Biden’s priority on immigration has been to keep it out of the headlines.

But protecting immigrant workers from exploitation is something that everyone can rally behind, regardless of politics. There’s been a long-standing effort by people at the top of the economic food chain to use identity differences to divide and conquer working people. In truth, all workers have a common interest in seeking better labor conditions.

The recently announced DHS process will help labor enforcement agencies do their jobs more effectively. But it’s not actually novel. DHS has long exercised discretion (such as granting “deferred action” or “parole in place”) on a case-by-case basis to ensure the availability of witnesses for law enforcement purposes. The new process for labor agencies simply creates a streamlined way for federal, state, and local labor enforcers to submit a “statement of interest,” explaining why it would help their enforcement for DHS to grant discretionary status to workers in a particular case. Workers themselves follow up by submitting additional information to a DHS team focused on these cases.

This streamlined system removes a powerful cudgel that too many rotten employers have long used to abuse and exploit workers. It might lead to an uptick in immigrant workers speaking out about labor violations, or trying to organize their workplaces, a positive result which would also increase the already-urgent need for more funding for labor enforcement at all levels of government.

Will the usual immigrant-bashers file a lawsuit challenging the new process? They’d have a tough case to make. The streamlined process is not novel, furthers important law enforcement ends that benefit the public as a whole, and, most importantly, involves a case-by-case exercise of DHS discretion based on facts presented by credible law enforcement agencies. It also avoids waste of public funds: If the government has already invested resources in investigating and building a case, it’s foolish not to take measures to ensure that witnesses are available when needed. Fighting this development isn’t pro-American; it’s pro-exploitation.

The new streamlined DHS process isn’t really about immigration at all. It’s about upholding the rule of law for the most shameless subset of our country’s employers. More than anything, it’s about protecting working people.

All those years ago, I didn’t know that the restaurant down the street was underpaying their workers. I’m not naïve, but I wouldn’t have expected that they’d retaliate so harshly against someone who’d contributed to their business success. These situations are all around us, and they’re even more troubling in light of frontline workers’ crucial role during the COVID-19 pandemic. Thankfully, DHS will no longer let itself be used by bad bosses with a nasty axe to grind.


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