More protection for illegal workers
More protection for illegal workers
BY SEAN HIGGINS | MARCH 23, 2015 | 5:00 AM
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A migrant worker picks oranges at a grove March 29, 2006 in Bradenton, Florida. (Phillippe...The National Labor Relations Board, the federal agency that enforces labor laws, has started an aggressive new push to pursue cases against employers of illegal aliens.
Not only will the board's investigators ignore the immigration status of the workers in the complaint, but it also will help those workers obtain visas so they can testify against the employer. That's according to a recent internal "updated procedures" memorandum by agency general counsel Richard Griffin.
"This has been under consideration for some time now as the agency has examined how to remedy violations to the [National Labor Relations Act]," said agency spokeswoman Jessica Kahanek. She said it has been well-established that the labor act applies to all workers "regardless of immigration status."
The updated policy also creates a strong incentive for illegal immigrants to get involved in labor organizing. Not only will doing so give them legal protection against getting fired thanks to the Labor Act, but if they are fired they potentially become eligible for a visa.
"They are saying, 'If you want to stay, file a complaint and you can stay,' " said Angelo Amador, labor policy director for the National Restaurant Association.
At the same time, it creates a potential catch-22 scenario for employers. Federal immigration law says they must inquire about their workers' legal status and fire those who are not legally eligible to work. Half of the states also mandate the use of the E-Verify system.
But firing those employees could get the business in trouble with the National Labor Relations Board if the workers claim their legal status was just a pretext for firing them because of their union activity. The usual remedies are reinstating the worker and awarding back pay.
Maury Baskin, a management-side labor rights attorney, said an employer facing prosecution from the Department of Homeland Security for knowingly employing illegal immigrants can legitimately say he was afraid to fire them because that could have brought in the labor board.
"There is an interesting and weird clash between the labor laws and the immigration laws, and employers are getting caught in the middle," he said.
William Stock, vice president of the American Immigration Lawyers Association, said updated policy was needed because the current rules give employers too much power over illegal immigrants, whose status makes them vulnerable to exploitation. "Any tool that helps go after employers who are violating the system is useful," Stock said.
The Supreme Court waded into the mess in a 2002 case, Hoffman Plastic Compounds v. National Labor Relations Board. It ruled that a business cannot be required to violate immigration law to comply with the Labor Act. Thus, it cannot be forced to rehire or give back pay to someone it shouldn't have hired in the first place. However, the court let alone non-citizens' right to file complaints against their employers.
The ruling was seemingly trumped last year when President Obama announced that he would give temporary legal status to millions of illegal immigrants. Last month, a Texas court issued an injunction halting the order, saying the White House overstepped its authority. The dispute is still in the courts.
In the Feb. 27 memorandum, Griffin outlined the updated National Labor Relations Board policy, which he said was meant to address the enforcement problems created by the Supreme Court.
"The Supreme Court's Hoffman Plastic decision emphasized that even where backpay and reinstatement remedies are not available due to a discriminatee's immigration status, the board may utilize the federal courts' power of contempt to ensure compliance and deter future violations," he said.
He told the agency's regional offices they "should not investigate or determine the individual employee's actual immigration status" in complaints involving an unlawful firing.
In addition, in cases in which the immigrant's legal status "may impact our ability to remedy or litigate" a complaint, the NLRB will "work with the [regional office] to determine whether potential discriminate(s) and/or witness(es) could be eligible for a U or T Visa, or for deferred action and whether the NLRB should certify and/or facilitate this process."
The U and T Visas are eligible for immigrants who are victims of crimes. The U Visa is for victims who have "suffered substantial physical or mental abuse," according to the Department of Homeland Security's Citizenship and Immigration Service. The T Visa is for victims of human trafficking. Both are intended for cases involving serious organized crime activity in which the perpetrators brought the victims into the country.
Griffin's memorandum, however, cites a 2011 general counsel memorandum, prior to his tenure, that says the U Visa has been interpreted broadly to include crimes such as blackmail. "Examples of blackmail may include …threats to call immigration authorities," the memorandum said.
Kahanek said in those cases the labor board would simply "certify [to Citizenship and Immigration Services] that testimony and documentation from the employee is necessary to assist the agency's investigative and litigation functions and the employee has been a victim."
That's a big boost for the application, Stock noted. "One of the requirements to get a U Visa or a T Visa is that there be a law enforcement agency that certifies that you are the victim of a crime or a witness they need," he said. Finding new ways to use the U and T Visa was one of the instructions President Obama gave in his November executive order, Stock added.
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