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By Ben Penn
Some workers are declining back pay from the Labor Department because they fear being deported as part of President Donald Trump’s immigration crackdown, sources with direct knowledge of the situation tell Bloomberg BNA.
Workers across the country are telling DOL regional and district offices that they’re afraid to collect unpaid minimum wages and overtime or are refusing to confirm their address so that checks can be mailed, according to the sources. Many of those employees are believed to be shy about coming forward because they’re undocumented and not authorized to work in the country.
“This struck all of us as being really strange; people tend to want money,” one source told Bloomberg BNA. “For vulnerable, low wage workers, that’s a lot of money. People are pretty scared and distrustful.”
DOL spokesman Stephen Barr, in a statement provided to Bloomberg BNA, said: “The Department of Labor’s Wage and Hour Division is not aware of any widespread pattern of workers refusing back wage checks. The Division has a long-standing policy of protecting personally identifiable information of workers for whom we have recovered back wages. We continue to take actionable complaints from all workers and third parties.”
Neither Immigration and Customs Enforcement nor the White House provided a comment, referring Bloomberg BNA to the DOL instead.
The Labor Department doesn’t inquire about workers’ immigration status during investigations. The Homeland Security Department has pledged not to raid worksites where those investigations are happening.
Trump, however, has promised to step up enforcement of immigration laws during his six-plus weeks in office. He issued a Jan. 25 executive order that expanded deportation targets to include workers who use false identification to get jobs.
The number of employees declining back pay isn’t clear, as accounts are still coming in from around the country. The incidents are from cases already settled by the WHD with employers accused of not paying workers time-and-a-half overtime pay or the minimum wage.
Sources with decades of wage-and-hour enforcement experience told Bloomberg BNA they had never heard of such a nationwide pattern before, underscoring a new level of alarm among undocumented immigrants.
The department headquarters and acting-WHD Administrator Patricia Davidson received reports of workers declining back pay or refusing to confirm their address, said the sources, who spoke on condition of anonymity. Davidson and regional representatives last week discussed how to handle the recurring issue, according to a source briefed on the conference call.
But without a labor secretary—Trump nominee Alexander Acosta hasn’t yet had a confirmation hearing—it’s unclear whether the administration can move to resolve the matter by attempting to allay worker fears. Trump officially sent Acosta’s nomination to the Senate March 7, White House press secretary Sean Spicer told reporters (see related story).
The DOL often tries to track down workers who’ve left their jobs but are owed back wages stemming from an agency investigation.
Although the department has zero involvement in worksite raids, the ICE crackdown already appears to be having a sizable effect on DOL enforcement of the Fair Labor Standards Act. There has also been a noticeable upswing in workers refusing to speak with wage-and-hour investigators because they mistake them for ICE agents, two sources said. The lack of political leadership inside the DOL only makes the problem worse, one source added.
Davidson, the division’s acting director, is a career employee who was deputy administrator for program operations in the Obama administration. The DOL does have an acting political solicitor—the agency’s third-ranking position—but it is not known whether he has intervened or been made aware of the back pay issue.
The FLSA requires employers to pay covered workers minimum wages and overtime, regardless of their immigration status. Overall, the WHD recovered $266.6 million in wages in fiscal year 2016 for nearly 284,000 workers, an average of $940 per employee, the agency said. .
There’s no evidence of a similar pattern of workers turning down back pay during previous administrations, when the threat of worksite raids from ICE wasn’t as severe, some sources said.
Michael Hancock, who worked at the WHD for several decades, said he can recall a few isolated periods in time, such as after Sept. 11, 2001, in which workers were reluctant to gather back pay. However, this time the fear is actually legitimate, Hancock, now with plaintiffs’ law firm Cohen, Milstein, Sellers and Toll PC in New York, told Bloomberg BNA.
The threat of deportation is a major hindrance to wage-and-hour investigations, no matter who’s in the White House. The WHD doesn’t ask about worker status during worksite investigations, but immigrants are frequently reluctant to trust law enforcement of any kind.
It’s also common for the department to never find workers who are owed back pay, leaving the undisbursed money to sit in the U.S. Treasury. As much as 5 percent to 10 percent of the back wages recovered by the DOL every year never reach workers’ pockets, largely because of the transient nature of low-wage work.
“We remain committed to ensuring workers receive all the wages to which they are legally entitled. The vast majority of back wages owed are paid directly to workers by the employer with oversight from the Division,” the DOL’s Barr added. “For those wages paid directly to workers by the Division, we make every effort to locate all employees due back wages, including using online tools, such as the Worker Owed Wages System, which does not require a worker to physically visit a WHD office.”
The new reports of workers being contacted and willfully declining wages owed indicates a state of heightened trepidation.
“What you’re picking up is an amplification of this larger issue given the current climate,” David Weil, who ran the WHD under President Barack Obama, told Bloomberg BNA when briefed on the situation. “That just concerns me deeply because it can unwind the whole basis of a labor standards enforcement, from the beginnings of finding where the problems are to the end in recovering back wages.”
The reports are said to be concentrated in the DOL regions with large populations of immigrant workers: the Southwest, Southeast and West.
“The law says Wage and Hour enforces the basic labor standards for our country for anyone who does work in our country period, regardless of immigration status,” said Weil, who returned to his job as a Boston University management professor after Trump’s inauguration. “I fully sympathize with anyone who has immigration status problems being scared out of their mind in the current environment.”
A Department of Homeland Security memorandum implementing Trump’s executive order realigns immigration enforcement priorities so that nearly every undocumented immigrant may be subject to deportation. The memo also seeks to beef up ICE’s ranks and re-establish partnerships with state and local law enforcement agencies to aid in immigration enforcement.
If the reports of workers refusing paychecks are true, “that’s an astonishing indicator of the obstacles we are going to face in efforts to enforce basic labor standards in this anti-immigrant climate,” Shannon Lederer, director of immigration policy at the AFL-CIO, told Bloomberg BNA.
However, the Federation for American Immigration Reform—which advocates for lower overall immigration levels—was skeptical that Trump’s immigration enforcement stance is causing more fear.
“Most illegal aliens come here for economic reasons, and they’ve been paid for years, or decades, for jobs they weren’t authorized to have, all while knowing they are deportable at any moment,” Dave Ray, a FAIR spokesman, told Bloomberg BNA via email. “It’s not really believable that they are suddenly afraid to collect a paycheck from an employer or the government, which is the only reason why most of them are here, and have chosen to remain, despite the current stepped up enforcement environment.”
If confirmed, Acosta would bring a deep law enforcement resume that could inform his response to this interagency conflict. Under President George W. Bush, Acosta helmed the Justice Department’s civil rights division and was a U.S. attorney.
It’s yet to been seen whether the administration will retain an agreement that the DOL and the DHS brokered in 2011. The DHS pledged as part of that memorandum of understanding not to raid a worksite while it’s under a pending DOL investigation.
Still, an effort by Acosta, if confirmed, and DHS Secretary John Kelly to reaffirm the administration’s commitment to this MOU wouldn’t necessarily encourage more workers to accept their checks.
Paul DeCamp, WHD administrator under George W. Bush, said he had never heard of workers being contacted and still turning down back wages. But that doesn’t mean such a scenario hasn’t transpired, he noted. However, it’s more likely that a worker afraid of accepting a government paycheck wouldn’t even speak with the agency in the first place, DeCamp told Bloomberg BNA via email.
“If the threat of deportation is real, workers will have a hard time feeling comfortable interacting with any agent of the federal government,” said DeCamp, who now represents employers as a principal at Jackson Lewis PC in Washington. “To increase the likelihood of workers receiving payments, WHD might consider making arrangements with consular agents to facilitate payments to foreign nationals, to the extent allowed by law.”
To contact the reporter on this story: Ben Penn in Washington at firstname.lastname@example.org
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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