After repeatedly telling her that her undocumented status offered her no rights in this country, he proposed her an ultimatum: either she accept his sexual advances or he would report her undocumented status and have her fired. Such is the story of Josefina Guerrero, who in 2010, became one of the many victims of exploitation and employer retaliation. Living in the outskirts of Philadelphia, Pennsylvania, Josefina worked in a food processing facility where she experienced repeated verbal and sexual assaults from her employer. Fearing for her safety, it would take Josefine two years to come forward with her story. Unfortunately, Josefina’s story is hardly uncommon. The stories of Felipe Villareal, Antonio Campos Lozano, Maria Guadalupe Escoba, and several others range from employers refusing to pay months of earned wages to exposing workers to medically hazardous working conditions. The outcome of these stories tend to be similar as well, with employers retaliating with deportations or threats of deportation whenever workers complain. These individuals represent two out of three undocumented workers who are employed in the United States for the means of being exploited.
These violations come in spite of the countless protections offered to undocumented workers and workers in general. Contrary to belief, undocumented workers are offered the same legal protection as U.S. citizens/resident with little limitations under laws such as the National Labor Relations Act (NLRA), Title VII of the Civil Rights Act of 1964, Equal Pay Act, Americans with Disabilities Act, Age Discrimination in Employment Act and anti-retaliation laws. Under normal circumstances, these federal laws establish protected activities in which workers have the right to participate in–such as joining unions or activities to address/improve working conditions– and their anti-retaliation clauses make it illegal for employers to retaliate against these protected activities. If employer retaliation were to occur, as it oftentimes does with undocumented workers, employees must show that they were a) engaged in a protected activity, b) they received some form of punishment, and c) prove that said punishment was as consequence of participating in a protected activity. Successfully proving all these items will usually award employees some type of payment for damages either by winning their case or through settlements. Despite these legal protections, as shown by Josefina’s story and now academic research, these laws provide little protection for those who face deportation as a form of retaliation from their employer. When the victim of retaliation is an undocumented worker, these systms of protection quickly falls apart. Being placed in deportation proceedings oftentime makes it difficult for individuals to proceed with workplace violation claims, let alone retaliation lawsuits. Incentivized by cheap labor, employers find it more cost effective to work with ICE officials as a means of both avoiding lawsuits and ensuring that other employees do not present future allegations.
So far, employer threats have been successful at deterring individuals from reporting labor rights violations. A recent study spearheaded by Annete Bernhardt, the policy co-director of the National Employment Law Project, found that out of 4,300 workers living in three major cities in the U.S., 37.1% of undocumented workers were victims of minimum wage violations and 84.9% were not paid overtime wages. These numbers become even more staggering when considering that undocumented workers only make up around 5% of the U.S. workforce. Employer methods have become so effective that even when workers report violations, employers are typically able to thwart consequences from any legal action taken by employees. A prime example of this is the story of Maria Guadalupe Escobar Ibarra. In 2002, Maria filed a class action lawsuit against her employer for violating the Fair Labor Standards Act and the New York State labor Law. The lawsuit was met with threats from her employer, who mentioned they would contact immigration authorities regarding her legal status if the case was not dropped. After refusing to drop the case, the supervisor sent a special agent from the Department of Homeland Security to her house. There the special agent demanded she hand over documents demonstrating she had legal status while gesturing at the gun on his belt. She was later arrested and charged with criminal charges for forging legal documents. In the case of the Esmoke company in Lakewood, New Jersey, workers filed a complaint with the Department of Labor’s Wage and Hour Division (WHD) and Occupational Health and Safety Administration (OSHA) after numerous safety concerns and unpaid overtime wages. After the investigation, two of the workers who initiated the complaint were fired and rumors spread that immigration officers would be visiting the facility. Only those close to the manager were provided with I-9 and IRS W-4 documents. The employer was later found to have been missing $33,000 of unpaid overtime wages, of which several still remain unpaid.
Various solutions have been proposed to deal with the exploitation of undocumented workers. Many of those solutions include items such as providing undocumented workers with Legal Permanent Resident (LPR) status, expanding federal employment authorization, or work visas. Probably one of the more promising solutions is the Protect Our Workers from Exploitation and Retaliation (POWER) act, introduced into congress in 2018 and reintroduced in 2019 by representative Judy Chu (D-Calif.) and senator Robert Menendez (D-N.J.). The passing of this legislation would provide undocumented workers with a number of safety guards, including expanding the eligibility of U nonimmigrant visas or U-visas. This type of visa sets aside for victims of certain qualifying crimes and are assisting law enforcement in the investigation or prosecution of criminal activity. Certain qualifying crimes usually includes crimes of mental or physical abuse, such as trafficking, torture, domestic violence, and sexual assault (Victims of Criminal Activity: U Nonimmigrant Status). As of right now, many of the qualifying crimes listed for the U visa may apply to commonly seen workplace abuses such as blackmail, obstruction of justice, or witness tampering. The issue, however, is that workplace violations like wage theft, employment discrimination, and collective bargaining are not explicitly listed requiring an experienced lawyer to prove that these violations qualify a victim. The POWER act would add to the list of qualifying crimes, making work related violations explicit. The second hurdle a victim must overcome to meet U visa requirements is receiving a certification of helpfulness from relevant agencies. This, unfortunately, is rare for work related violations. The POWER act seeks to expand the type of agencies that can provide the certification of helpfulness to meet the current needs of investigations.
Moreover, the POWER act would provide victims protection from immediate deportation by providing stay of removals and employment authorizations until claims have been resolved. A stay of removal is a temporary postponement, preventing an order of removal from being carried out by the Department of Homeland Security (DHS). This revision will ensure that law enforcement agencies are able to carry out cases and prosecute employers. Had the POWER act been in place when Maria Guadalupe Escobar Ibarra filed her class action lawsuit, she would have had protection from immediate deportation even after having used fraudulent documents. The same would have been the case for the fired workers of the Esmoke company in New Jersey. With expansion of U visas, stay of removals, and employment authorizations, the POWER act would provide a safeguard for undocumented immigrants, hopefully incentivizing victims of workplace violations to report them. While the act seems to resolve many of the issues at hand, it does not take into account one issue: U visas, stay of removals, and employment authorizations would all be forms of temporary status.
Although promising, the act only scrapes the surface of the insititutional problem that is labor exploitation of undocumented workers. As explained above, the protections offered by legislation such as the POWER act would only provide safeguards for victims until investigations of employer malpractice have been completed. Consequently, workers who are faced with retaliation from their employer would only be postponing their inevitable deportation. The act provides protection for workers already in deportation proceedings, however, offers little incentive for workers to proceed with reporting their employers. The reality is that in order to target the heart of the issue, deep revision of immigration policy is needed as well as rethinking the rhetoric used when discussing the issue of immigration.
After leaving an administration that confidently expressed xenophobic rhetoric and issued indiscriminate deportation laws, there is much work that needs to be done in order establish policy that both prevents exploitation, protects those who have already been exploited, and incentivizes victims to move forward with their claims.