Fear of Immigration Raids May Harm Workplace Rights

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Laura D. Francis

The Trump administration’s increased immigration enforcement could have an unintended consequence: reduced willingness to report workplace rights violations.

Getting workers to come forward about workplace rights violations has “always been an issue,” Adrienne DerVartanian, director of immigration and labor rights at Farmworker Justice, told Bloomberg BNA Feb. 23. But the “current environment, with a real focus on immigration enforcement and raids,” has created an “increase in the level of fear and concerns,” she said.

With the highest rates of wage and hour violations among undocumented immigrants—particularly women—employer threats of calls to Immigration and Customs Enforcement are “very strong,” Haeyoung Yoon, director of strategic partnerships at the National Employment Law Project, said Feb. 23.

“I don’t believe that you’ll see an increased chilling effect on wage and hour enforcement,” Tammy McCutchen, a management-side attorney with Littler Mendelson in Washington, D.C., told Bloomberg BNA Feb. 27. Immigrant workers’ reluctance to report violations is a “long-standing issue” that isn’t going to change, she said.

But worker advocates are building the capacity to address these challenges. “I think we’ll continue to see a tremendous amount of courage and bravery from workers who want to assert their rights,” Shannon Lederer, director of immigration policy at the AFL-CIO, said Feb. 24. Right now we are giving workers and community members “as many tools as we can” to “create the infrastructure” to “help provide whatever meaningful defense we can in this evolving enforcement context,” she said.

New Immigration Priorities

President Donald Trump issued two executive orders Jan. 25 that focused on increased border security and interior immigration enforcement. The Department of Homeland Security followed up Feb. 21 with two memorandums implementing those orders.

The interior enforcement memo realigns immigration enforcement priorities so that nearly every undocumented immigrant is now subject to deportation. The memo also seeks to beef up ICE’s ranks and reestablish partnerships with state and local law enforcement agencies to aid in immigration enforcement.

The AFL-CIO is “tremendously concerned about the chilling effect that the new executive orders will have on the exercise of workplace rights,” Lederer told Bloomberg BNA. We see the increase and “highly visible presence of ICE” and the “renewed emphasis on collaboration with local law enforcement” as “enabling tools” for retaliation against workers who speak up, she said.

“We really do rely on workers to file claims to address these problems,” Lederer said. Enforcing labor standards is a “claims-driven process” because of the limited resources of federal and state enforcement agencies, she said.

But if workers feel it’s “too risky” to bring a claim, “we’re going to see this kind of rampant exploitation,” she said. “The most exploited workers are also going to feel like they have a target sign on their back right now,” she said.

Greater Fear?

“Even prior to Trump’s immigration policies, there was a culture of fear in our workplaces across the country,” Yoon said. Employers have been known to lob threats to call ICE if workers complain, Yoon said. And now that nearly every undocumented immigrant is subject to enforcement, “there’s greater fear,” she said.

But the “current developments” in immigration enforcement won’t do much to increase the fear that’s already there, McCutchen said.

For decades, the WHD has taken actions to prevent immigration enforcement from interfering with wage and hour enforcement, and to “encourage undocumented workers to come forward,” said McCutchen, an administrator of the Labor Department’s Wage and Hour Division under President George W. Bush. “All those efforts are still in place,” she said.

That includes a memorandum of understanding between ICE and the DOL, National Labor Relations Board and the Equal Employment Opportunity Commission, McCutchen said. Under the MOU, ICE agreed not to engage in immigration enforcement while the other agencies are conducting investigations at a work site.

“In 2016, ICE formalized a deconfliction process with the Department of Labor, Equal Employment Opportunity Commission, and the National Labor Relations Board that enhances coordination in cases where federal responsibilities to enforce labor, employment and immigration laws may overlap,” an ICE official told Bloomberg BNA in a Feb. 27 e-mail. “This deconfliction process is still in effect,” the official said.

“ICE respects the employment related rights of all workers, regardless of immigration status,” the ICE official said.

Wage, Hour Violations a ‘Norm.’

“Wage theft and wage violations is a norm across various industries in our economy,” Yoon told Bloomberg BNA. And it’s commonplace for workers—especially low-wage workers—to fear coming forward because of a lack of strong protections against retaliation, Yoon said.

A 2008 NELP survey of more than 4,000 workers in low-wage industries in New York, Chicago and Los Angeles, found that 68 percent of workers experienced at least one pay-related violation in the previous workweek. The average worker lost $51 out of average weekly earnings of $339. Assuming the workers have full-time schedules, that’s an average loss of $2,634 annually out of total earnings of $17,616.

A 2014 report from the Economic Policy Institute found that the total value of property taken in the 292,074 robberies reported nationwide in 2012 was $340,850,358. During that same year, challenges to wage theft—either via private attorneys or state or federal enforcement agencies—resulted in recovery of $933 million in stolen wages, more than three times the amount stolen in robberies.

Agriculture, where a large portion of the workforce is undocumented, is “an industry in which violations of rights are rampant,” DerVartanian said. And those violations “run the gamut,” from failure to pay the minimum wage to discrimination to pesticide exposure to failure to provide basic services like access to toilets and hand-washing facilities in the fields, she said.

Agriculture Seeks More Than Enforcement

Kristi Boswell, director of congressional relations at the American Farm Bureau Federation, disputed that claim. “There are, of course, bad actors in every industry,” but farmers as a whole are good employers, she told Bloomberg BNA Feb. 28.

They’re “doing everything that they can” to “ensure that their workforce is happy, that they are treated fairly,” she said.

The Farm Bureau recognizes that more than half of agricultural workers are unauthorized immigrants, but a large portion of them obtain their jobs using fake documents, Boswell said. Most farms aren’t deliberately hiring undocumented workers in order to pay them under the table or take advantage of them, she said.

But the Farm Bureau also is wary of the new immigration enforcement priorities, especially without legislation in place that can ensure a legal agricultural workforce, Boswell said.

“I think there’s an opportunity” for the agriculture industry “to leverage those enforcement proposals” and work with Congress and the administration on a measure that provides workforce stability, she said.

Calling on State Agencies

NELP is working on pressuring state labor agencies to adopt policies to “act very swiftly when they hear of employers engaging in any kind of retaliatory actionֿ,” Yoon said. Reminding employers that there are consequences for retaliating by calling ICE is “an important step that state agencies should be taking,” she said.

“All workers in California are protected by labor laws, and the Department of Industrial Relations enforces workplace rights regardless of immigration status,” said Erika Monterroza, a DIR spokeswoman, whose state is home to a large number of undocumented immigrants.

But “we recognize that workers in California, especially those that are immigrants, frequently are afraid or intimidated,” and that creates an “impediment” to reporting workplace violations, Monterroza said.

That’s why “the department works closely with consulates, workers’ rights organizations, and other state and local offices” to “provide information that assists workers in reporting labor law violations and workplace safety and health hazards,” she said.

“We will see what happens” with the federal Labor Department, Yoon said. Resources will be scarce, but it’s also a matter of political will, she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law