Labor advocates celebrate a major victory for immigrant workers

Some of the most exploited and abused members of the country’s workforce have long been forced into silence by immigration threats. A new initiative could encourage them to speak up.

On Jan. 13, the U.S Department of Homeland Security (DHS) announced a policy that would allow undocumented migrant workers who report labor right violations – which they have either suffered or witnessed – greater protection against deportation. This shift, which labor advocates have long pushed for, will give non-citizen workers access to a streamlined process to defer their deportations for two years, and potentially grant them work authorizations. 

Homeland Secretary Alejandro Mayorkas stressed that the  policy would help to hold accountable “unscrupulous employers who prey on the vulnerability of noncitizen workers.” Making it safer for these workers to report exploitative employers and workplace violations, but also to participate in labor investigations, he said, can also bring down practices that “harm all workers and disadvantage businesses who play by the rules.” 

In addition to possible workplace retaliation, which all workers may fear when deciding whether to report a violation or to organize, the looming fear of deportation has a “major chilling effect” for undocumented workers, said Bliss Requa-Trautz, the executive director of the Arriba Las Vegas Worker Center, which defends labor rights, and helps empower immigrant workers. 

“We’ve seen workers come in with videos of their employers saying ‘Write down your home address because I’m sending ICE after you,’” causing a lot of them not to follow through, she added.  

‘A historical victory’

Despite the threats and the fear, Rosario Ortiz was among the first undocumented workers to speak out publicly and testify in an ongoing labor investigation. “It started in 2018 when I was working at Unforgettable Coatings,” a painting contractor based in Nevada, Ortiz told The Chief in Spanish. 

For two years, Ortiz said he and other workers were abused by company bosses, misconduct that he documented: “wage theft, workers working for free on Saturdays, health and safety violations, and threats for anyone trying to organize, reminding you of your undocumented status,” he said.

After workers started reporting these violations to the Department of Labor, the case was brought to court by the labor secretary in 2020. U.S. District Judge Kent Dawson eventually found that the company had repeatedly failed to pay its employees overtime, and fired workers in alleged retaliation for cooperating with investigators. 

“Defendants have tried not only to silence their workers, but also to actively manipulate them to provide false information to the government’s investigators,” Dawson concluded. 

Ortiz, a key witness in the investigation, was fired from Unforgettable Coatings in 2020. With the help of Arriba Las Vegas and other worker centers, he became a leading voice of the movement, advocating for protections for immigrant workers and requesting action from the Biden administration through the Desde Abajo Labor Enforcement (DALE) campaign. 

In the same week the new whistleblower policy was announced, immigrant workers at Unforgettable Coatings won a settlement of $3.7 million for stolen wages, penalties, damages and interest. “This is a historical victory for immigrant workers,” Ortiz said. 

“It will open a path for others to speak up and I hope that workers all over the country will be able to report similar cases of abuse, and obtain work permits rather than deportation,” he added.  

Conflicting jurisdictions 

Starting with the Immigration Reform and Control Act of 1986, which prompted a major legalization effort while introducing penalties to employers who knowingly hired undocumented immigrants, immigrant worker rights in the U.S. have long been stuck between two conflicting jurisdictions: labor standards enforcement and immigration control, said Shannon Gleeson, the chair of the Labor Relations, Law and History Department at Cornell University’s School of Industrial and Labor Relations. 

In theory, since 2002 even undocumented workers enjoy basic labor rights, but “the clash with increasingly restrictive immigration policies has resulted in a confusing administrative terrain,” making the implementation of these rights difficult, Gleeson explained.

In fact, this new policy is not a change in law, but a change in procedure, which promises a better implementation of a longstanding practice. 

An understanding has long existed between the Department of Labor and that of Homeland Security, which gives the latter the discretion to consider labor agency requests for granting deferred action, said Mary Yanik, an associate clinical professor of law and the director of the Immigrant Rights Clinic at Tulane University. 

But Yanik, who has represented dozens of immigrant workers in reporting labor abuse, has also seen first-hand the fears, local politics and administrative delays that hinder workers from claiming their rights, and getting the agencies to act on their claims. 

“The biggest change is that it is now written publicly, on a government website, that they will centralize and expedite this process,” Yanik said. Although Homeland Security did not specify how fast this expedited process would take, some worker organizers said they are hoping to obtain deferred action for workers in 10 to 45 days. “My hope is that immigration will defer to that, and that more people will be able to bring cases forward.”

Direct messengers 

At Arise Chicago, a nonprofit that fights workplace injustice through education, organizing and advocacy, worker organizer Jorge Mújica said that “we already have more and more people calling and sending messages to know if they would qualify.” Like many grassroots labor organizations, Arise is increasing its efforts to raise awareness about the expedited process and preparing labor-rights workshops to help workers understand their rights, and claim them. 

While Yanik is optimistic about the new policy, she warns that immigrants tend to be afraid of immigration processes, even when they are set up to benefit them, a mistrust that stems from a long history of workplace raids, threats and deportations. “This will only be overcome through successful cases that demonstrate the immigration agencies are willing to do better and committed to worker rights,” she said.

“I look forward to a time when workers have gone through the process, received protection and are speaking up publicly to encourage others to come forward. Immigrant workers themselves are the best messengers to build a new legacy.”