Co-Written by Outten & Golden LLP Law Clerk Daniel Kessler.
Media reports indicate that employers are increasingly threatening undocumented employees with deportation consequences as a means of harassment and retaliation. But workers, whether documented or undocumented, are protected from immigration-related harassment, retaliation, and abuse under various local, state, and federal laws. And individuals with work authorization are protected from discrimination in employment, lending, and other areas.
Recent guidance and statutory revisions have sought to address this unlawful harassment and retaliation. For example, The New York City Human Rights Commission issued guidance in September 2019, advising that employers may not harass an employee because of his or her actual or perceived immigration status or national origin. The guidance includes:
- Interview Questions: An employer is prohibited from asking an applicant questions about work authorization because of his or her perceived immigration status or national origin. For example, if an employer only asks applicants with accents if they are authorized to work in the United States, the employer has violated the N.Y.C. Human Rights Law.
- Verification of Work Authorization: Under New York City and federal law, an employer may not demand documents beyond those listed on Form I-9, the employment eligibility verification form. An employer also violates the N.Y.C. Human Rights Law by asking for an applicant's birth certificate because the applicant appears "foreign." Similarly, an employer may not reverify an employee's documents because of a discriminatory motive.
- No-Match Letters: Employers sometimes receive "No-Match" letters from the Social Security Administration. A No-Match letter informs employers that an employee's social security number does not match the agency's records. While federal law requires employers to fire employees that the employer knows are undocumented, a "no-match" can be triggered by a name change or clerical error, and are not proof that an employee is undocumented. If an employer fires or suspends an employee after receiving a No-Match letter, the employer may be violating the N.Y.C. Human Rights Law for firing an employee because of her perceived immigration status.
- Harassment: Once an employer hires someone, the employer cannot exploit, harass, or discriminate against the employee, regardless of the employee's work authorization status. For example, if an employer demands an employee work harder and threatens to call U.S. Immigration and Customs Enforcement (I.C.E.), the employer may be violating the N.Y.C. Human Rights Law. An employer may also be creating a hostile work environment by demeaning or harassing employees with terms like "illegals" or "aliens."
- Retaliation: Certain activity is protected by the N.Y.C. Human Rights Law, including participating in an investigation or hearing before the New York City Human Rights Commission, requesting a reasonable accommodation for a religious practice or disability, or opposing discrimination. Employers cannot threaten an employee or the employee's family with deportation consequences for engaging in protected activity. For example, if a seasonal employee requests a reasonable accommodation for a disability, her employer may not then threaten to call I.C.E. or refuse to sponsor the employee's visa the following year.
- Protections for Families: If an employer withholds or threatens to withhold benefits for an employee's family member or associate because of the associate or relative's immigration status, then there may be a claim against the employer. For example, an employer who normally pays the health benefits of employees' spouses but refuses to pay the benefits for non-U.S. citizen spouses, may be violating the N.Y.C. Human Rights Law.
New York State also recently amended its labor laws to make clear that reporting or threatening to report the suspected immigration status of an employee, or an employee's family, because the employee complained about a labor law violation, constitutes unlawful retaliation.
And California continues to institute robust protections for immigrant workers. California employers are required to notify current employees when an immigration agency inspects the I-9 Employment Eligibility Verification forms or other employment records of the employee. Employers may not retaliate against employees by threatening to report their immigration status.
Meanwhile, city and state agencies have stepped up enforcement actions under these laws and have recovered substantial monetary settlements.
- In 2018, the New York City Human Rights Commission secured a settlement with a Brooklyn grocery store, requiring the store to pay $5,000 to a former employee and $5,000 in civil penalties, after threatening to deport the employee when he was injured on the job.
- In 2019, the Office of the Attorney General of New York secured a settlement with a healthcare company, which cheated workers out of their wages and then threatened to call I.C.E. when some complained about their unpaid wages. The company was required to pay $450,000 in cash and benefits.
- Even before New York strengthened its anti-retaliation labor law, the New York Department of Labor had imposed at least $250,000 in fines in the past three years for immigration-related retaliation.
- The California Division of Industrial Relation reported receiving 78 complaints of immigration-related retaliation in 2018. In one case, after learning an employee planned to contact the California Labor Commissioner to report wage and workhour issues, the employer tried to contact immigration authorities, and later reported the employee to a social service agency as undocumented. The Labor Commissioner assessed the employer $30,000 in penalties payable to the worker and $30,000 in civil penalties payable to the State, for the retaliation claim alone.
Outten & Golden LLP is a leader in litigating discrimination and wage theft cases on behalf of immigrant workers and consumers. In 2000, we filed a class action on behalf of hundreds of West African immigrant delivery workers who were underpaid in violation of New York and federal law. After three years of litigation, we reached a class-wide settlement for a total of $8.1 million plus job-related benefits for our clients. We have also brought pathbreaking impact litigation against banks and employers for denying DACA recipients loans and jobs. Outten & Golden and the Mexican American Legal Defense and Educational Fund are currently challenging a bank's refusal to issue a variety of consumer loans to applicants with DACA. We are also litigating a class action against a consumer products conglomerate that refuses to consider applicants with DACA status for summer internship and entry-level positions and we settled a similar case against Northwestern Mutual.
If you have been discriminated or retaliated against, or harassed or intimidated because of your immigration status, or because you are undocumented, you may be entitled to pursue a legal claim. Contact Us.