Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘undocumented’

Why Defending Workers’ Rights Means Fighting ICE’s Deportation Machine

Friday, August 25th, 2017

Last month, California Labor Commissioner Julie Su distributed a memo instructing her staff to turn away any Immigration and Customs Enforcement (ICE) agents who show up at labor offices without a federal warrant. This action came in response to three recent cases in which ICE sought workers’ information shortly after they filed claims against their employers. Su told The Los Angeles Times that, in two of these cases, ICE officials showed up at the employees’ labor hearing. In case ICE continues to show up at such hearings, Su provided suggested scripts to guide the interaction. “Would you please leave our office? The Labor Commissioner does not consent to your entry or search of any part of our office,” reads one portion of the text.

ICE’s targeting of labor hearings falls into a much broader pattern of workplace immigration raids. The second term of the George W. Bush administration saw a boom in such policies, with authorities carrying out hundreds of sweeps targeting workers. In May of 2008, hundreds of Homeland Security agents swooped into Postville, Iowa and arrested 389 employees at a kosher meatpacking plant. Nearly 300 of those workers spent five months in jail before being deported. In a town with a population of just 2,300 people, this meant that more than 10 percent of all residents were incarcerated as the result of one raid. “They don’t go after employers. They don’t put CEOs in jail,” said Postville Community Schools superintendent David Strudthoff at the time. “[This] is like a natural disaster—only this one is man-made. In the end, it is the greater population that will suffer and the workforce that will be held accountable.”

While Barack Obama deported more people than any other president, the tactic of targeting workers fluctuated on his watch. Data from ICE indicates that workplace immigration arrests peaked for Obama in 2011—but never reached the levels seen under Bush. The National Employment Law Project’s (NELP) Haeyoung Yoon told In These Times that, while we haven’t seen widespread examples of workplace raids under the Trump administration, this doesn’t mean they’re not coming eventually. “These efforts take a lot of time to plan,” said Yoon.

Underscoring Yoon’s point, 55 undocumented workers were detained in February in a series of Mississippi restaurant raids. After the arrests, ICE public affairs officer Thomas Byrd said that the federal search warrants were part of a year-long investigation.

State organizations like the Illinois Business Immigration Coalition are training employers to prepare for the possibility of such sweeps. NELP and the National Immigration Law Center have created a helpful guide for businesses concerned about ICE raids, which includes details on how to keep agents out, what to do if they enter and what actions can be taken after they leave. “Employers and their employees have rights when it comes to immigration enforcement in the workplace,” wrote NELP staff attorney Laura Huizar shortly after the guide was published. “Employers can and should take steps now to protect those rights and do what’s best for their business and their teams.”

In California, where almost half of the state’s farmworkers are undocumented, there have been recent legislative efforts to combat workplace raids. The SEIU-sponsored Immigrant Worker Protection Act (AB 450) is a bill, introduced this March, that would require all employers to demand a federal warrant if ICE shows up. The legislation, which was introduced by San Francisco Assemblymember David Chiu, would also prevent businesses from handing over personal employee information unless they were subpoenaed.

But what is to be done about employers who willingly collude with ICE? While explaining her memo, Julie Su told the Los Angeles Times that she suspected businesses of tipping agents off to labor hearings, events where only the employer and employee would be aware of the scheduled time. Earlier this year, Jose Flores, a 37-year-old Massachusetts man, was arrested by ICE shortly after a workers’ compensation meeting. Flores’ lawyers believe that the arrest might have been retaliation from Flores’ employer, Tara Construction, looking for a way to get out of paying out the claim. Stephen Murray, a lawyer for Tara Construction, insists that his client made no contact with ICE and had no reason to believe Flores’ was undocumented.

A recent investigation by ProPublica and NPR reveals that this is hardly an isolated case. Their review focuses on Florida, where a 2003 law made it illegal to for workers to file compensation claims using false identification. In the 14 years since, at least 130 injured workers were arrested under the law. At least one in four of those workers was detained by ICE or deported. “State fraud investigators have arrested injured workers at doctor’s appointments and at depositions in their workers’ comp cases,” reads the report. “Some were taken into custody with their arms still in slings.”

The report also points out that the Florida model could be a preview of widespread things to come under the Trump administration. If this is true, then the labor movement could end up taking a closer look at Tom Cat Bakery in Queens, where a Homeland Security inquiry and promise of subsequent firings sparked radical protests. Employers who openly collude with Trump’s deportation machine might soon be targets of the same resistance.

 This article was originally published at In These Times on August 21, 2017. Reprinted with permission.
About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

Trump’s Immigration Gag Order

Friday, May 5th, 2017

Like many employment lawyers in California, I’ve represented a number of undocumented immigrant workers in lawsuits against their employers. Some of my undocumented clients had been sexually harassed, some discriminated against because of their ethnicity, and some had been denied minimum wages for performing menial work.

Of course, these clients and millions of others are working here in violation of our immigration laws. But once they enter the workplace, they are entitled to all of the legal protections guaranteed their American coworkers. The 14th Amendment protects everyone in the United States, regardless of how or why they are here. So any law whose purpose or effect is to deny workers access to the full protection of our employment laws violates the Constitution.

Although I worry about the slow pace of our journey toward workplace equality, I have more immediate concerns these days. The Trump administration’s anti-immigrant rhetoric and immigration executive order are creating barriers to the justice system for entire communities. If you believe there is a reasonable chance that you or a family member will be deported if you file a civil complaint, or even if you call the police to report a crime, you will be less inclined to complain.

Silencing Crime Victims

Look at what is happening in the criminal justice arena. We are barely 100 days into the Trump administration and already we are measuring its detrimental impact on crime reporting. According to the Los Angeles Police, Latino immigrants in L.A. have suddenly become less willing to report serious crimes. Chief Beck reported that complaints by immigrant Latinos dropped 25 percent in 2017 when compared to the same period last year. Reports of domestic violence fell 10 percent. Beck asked us to “imagine a young woman, imagine your daughter, your sister, your mother,” he said, “not reporting a sexual assault, because they are afraid that their family will be torn apart.” While undocumented families have always lived with the fear of deportation, the current political climate is amplifying those fears.

Reports are coming in from around the country showing a strong correlation between the Trump administration’s immigration policies and a drop in crime reporting in immigrant communities. We know reports of rape and domestic violence against women are chronically underreported for many reasons, including the very real fear that the criminal justice system will fail the victim. Now, under the Trump administration, the very act of reporting any crime to law enforcement has become unbearably more dangerous for millions of immigrant families in America.

Just last month California’s Chief Justice said, “When we hear of immigration arrests and the fear of immigration arrests in our state courthouses, I am concerned that that kind of information trickles down into the community, the schools, the churches. The families and people will no longer come to court to protect themselves or cooperate or bear witness,” she said. “I am afraid that will be the end of justice and communities will be less safe and victimization will continue.” As an employment attorney in California, I share these concerns.

Immigration policies that discourage individuals from reporting crime is bad for America. They cannot be justified on the grounds they are part of broader campaign to find and deport “bad hombres.” More crime victims, including legal residents and American citizens, will remain silent and unprotected, and more perpetrators of crime will go unpunished, because of these policies. Whether Trump’s promised border wall is ever built, his anti-immigrant rhetoric and ICE directives have already constructed formidable barriers within America.

Silencing Employees

When those same immigration policies discourage individuals from reporting violations of employment laws, our workplaces become more dangerous too. Imagine the conversations immigrant families across America will be having about their workplace rights in the coming years. Workers will be forced to decide whether the risks of deportation of themselves or a family member makes it worth challenging wage theft, discrimination, harassment or workplace safety violations. If an undocumented worker complains about the absence of a safety guard on a factory machine or the lack of personal safety devices by filing an OSHA claim or civil lawsuit, she might be arrested and torn away from her American-born children. So, she doesn’t complain, and the workplace protections we have fought for are placed in jeopardy for all.

In the past I have assured undocumented workers that prosecuting employment claims in court likely will not subject them to heightened ICE scrutiny. I continue to believe this to be true today. Although lawsuits are open to the public, they are in practice private affairs that concern only the litigants. Employees are almost never required to step foot near the actual courthouse where their cases are pending. Most cases settle out of court and are subject to confidentiality. The immigration status of the employee is deemed by law to be entirely irrelevant and non-discoverable in almost every employment case.

Trump’s deportation directives will not change the way employment lawsuits are resolved, whether they involve citizens, legal residents or undocumented immigrants. But his threats of deportation, coupled with stories of immigrant arrests in halls of justice across America, will make it far less likely that an undocumented immigrant will complain to anyone about working conditions.

Fewer immigrant workers will file employment-related claims during the Trump years, and not just those who are undocumented. In sanctuary cities like San Francisco where I practice law, the impact is not likely to be as great as elsewhere. In communities that support the Trump immigration agenda and accept his immigrant narrative, however, the fear of deportation is likely to keep a lot more workers quiet. And we know from long experience that any governmental policy designed to silence complaints about working conditions is not in our national interest.

About the Author: Patrick Kitchin is a labor rights attorney with offices in San Francisco and Alameda, California. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a 1992 graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

NLRB Chairman: New Penalties Needed for Union-Busting of Undocumented Workers

Tuesday, October 30th, 2012

NEW YORK CITYNational Labor Relations Board Chairman Mark Pearce says his agency could pursue new remedies to punish employers who retaliate against undocumented immigrants for organizing. Last year Pearce interpreted a 2002 Supreme Court decision to rule out back pay as a remedy in such cases, limiting the NLRB’s options of financial penalties.

Interviewed Friday by Working In These Times, Pearce called the tension between immigration law and labor law “extremely frustrating,” and the tools available for protecting undocumented workers against employer crimes “insufficient.”

“The concept of ‘made whole’ by us needs to be examined,” said Pearce, referring to a legal guideline for NLRB remedies. “Perhaps there are things within that concept that we can utilize. Now I can’t articulate what they are, because we’ve got to consider it.”

Pearce made these comments following a forum hosted by Cornell University’s ILR School. In his remarks to the assembled attorneys, Pearce said he “had angst over” his ruling in the NLRB’s Mezonos Maven Bakery case last year. In that 3-0 decision, the NLRB found that a bakery that fired a group of workers who had collectively complained about a supervisor could not be required to pay them back pay, because they were undocumented.

The Mezonos decision cited the US Supreme Court’s 2002 decision in Hoffman Plastic Compounds v. NLRB, which overturned an NLRB ruling granting back pay to an undocumented worker who was fired after trying to form a union (the NLRB is tasked with enforcing and interpreting private-sector labor law, but federal courts have the power to overturn the NLRB). Writing for a 5-4 majority, then-Chief Justice William Rehnquist said that “awarding back pay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations.”

At Friday’s forum, Pearce said that the Hoffman decision had forced him to deny back pay in Mezonos and “continues to create that problem where an employer could get away scot-free” with firing undocumented union supporters. Pearce said he had “struggled with the tension between the National Labor Relations Act, immigration law, and the rights of undocumented workers.” While the NLRB can still use non-economic remedies in such a situation, like requiring a company to post a notice saying it will comply with the law in the future, Pearce said that “seems a little empty” without a financial cost attached.

After the forum, Pearce told Working In These Times that the tension he’d identified could be resolved if a future Supreme Court case offers the NLRB “a more promising, or a more significant remedy to be applied for discriminatees who happen to be undocumented. But otherwise, it would probably have to take a change in the law.”

In the meantime, said Pearce, “the board has a certain degree of discretion with respect to the remedies.” He noted that the NLRB is legally empowered to “make whole” workers who are illegally punished or discriminated against, but is barred from assessing punitive damages against employers. That means that financial penalties against companies generally come in the form of back paywhich Mezonos took off the table for undocumented workers. “So exploration would have to be had,” said Pearce, “as to the full parameters of [the ‘made whole’] concept, to see whether or not a remedy could be fleshed out [for] those kinds of violations.”

Such a move “would be significant,” said Ana Avendaño, the AFL-CIO’s director of immigration and community action. “Because under the current structure, employers basically get a free bite at the apple. They can violate the law with impunity.”

Interviewed Saturday by phone, Avendaño disputed Pearce’s view that the Supreme Court’s Hoffman ruling required the NLRB to deny back pay in Mezonos. She said that a lower-level NLRB judge had been right to find that Hoffman didn’t apply in Mezonos, because in Hoffman it was the undocumented worker that had been proven to have violated immigration law, and in Mezonos it was the employer. Avendaño, who was among the attorneys arguing for back pay in Mezonos, said she hopes the second circuit court will reject the NLRB’s Mezonos reasoning and send the case back for a new ruling.

But Avendaño echoed Pearce’s criticism of Hoffman, which she said “has a chilling effect” on undocumented immigrants seeking to organize at work. Ultimately, she said, new legislation will be necessary to restore such workers’ rights, perhaps as part of a broader immigration reform.

Still, Avendaño welcomed the NLRB Chairman’s comments about the possibility of other remedies under current law. Given that the law bars punitive damages, and Hoffman restricts back pay awards to workers, Avendaño said, “one idea that advocates haveand the legal basis for this is soundis that there could be a fund established, where employers would still have to pay the back pay, but it would go into the fund, not directly to the worker.”

Avendaño said such a “special remedy” would be “less than ideal,” but would be an improvement over the status quo, where employers face a “perverse incentive … to just violate the immigration law, and then violate the [National Labor Relations Act], and have no responsibility for it.”

If a fitting test case reaches the NLRB, said Pearce, “We would have to see whether the board has that kind of authority, or is there something that causes us to feel that we are able to create an exception to the standard remedy.” Avendaño said the AFL-CIO hopes that will be the case: “If there was an opportunity, and we may have one soon, then we certainly are going to advance that argument.”

This article was originally posted on In these Times on October 29, 2012. Reprinted with permission.

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