The Legal Rights of Immigrant Workers
July 29, 2020
Protecting the Rights of Undocumented Workers With The Law
By Katelyn Deibler
Law Students on Workers’ Rights Series
The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”
Since the 1990s, there has been a massive shift in immigration policies in the United States. Perhaps most dramatically, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 toughened immigration policies and criminalized undocumented immigrants. This policy marked one of the first “deterrence” policies to combat immigration.
The Trump administration has increased these deterrence policies, including more border control, building walls, lowering visa caps, and lowering refugee caps. These strategies to deter immigration to the United States will not work for many reasons, but it will also have a massive impact on immigrant workers in the United States.
It is impossible to address how these policies are harming all types of immigrants in different ways, but it is very clear how “deterrence only” policies are not going to assist in slowing migration to the U.S. Instead, they will only contribute to a growth in illegal immigration, which puts all immigrant workers in even more precarious working situations. Rather than waiting four years for their asylum case to be heard (due to the current backlog of over one million cases), many immigrants will try their luck at entering without papers and find a job.
Unfortunately, many employers will use an immigrant’s lack of status to exploit their workers through unfair labor practices, pay, and threaten them with deportation if they retaliate.
While state-by-state law does differ, the Immigration and Naturalization Act of 1990 provides many of the same workplace protection to undocumented workers as native-born citizens. However, many undocumented workers remain unaware of U.S. law and their legal rights. States like California have enacted legislation that allows undocumented immigrants to be eligible for workers compensation and health and safety laws, and they are protected by the same federal and California wage laws, breaks, and overtime pay.
However, many bosses will misinform undocumented workers of their rights and knowingly exploit their employees through unfair labor practices. A boss like this often feels protected since they know their employees are not knowledgeable of their rights. Most importantly, immigrant workers will not seek help from law enforcement or file a report out of fear of being deported.
Another form of workplace abuse that I work with daily is sexual harassment and sexual abuse of immigrant women. I began working at the National Immigrant Women’s Advocacy Project (NIWAP) a year and a half ago, where I have been focusing specifically on immigrant victims of crime. Every day I work with immigrant victims of domestic violence, sexual assault, child abuse, elder abuse, human trafficking, and labor exploitation. I hear stories of immigrants who are physically and sexually abused by their bosses, but they are afraid to speak up out of a fear of losing their jobs.
At NIWAP, we help determine if they are a victim of a qualifying crime, and if they are, they are often eligible for the U-Visa. This visa provides temporary immigration relief to the victims who assist in the investigation of a crime. Empowering these victims also helps rid society of perpetrators who are preying on victims who are trying to assimilate, work, and live their lives with safety that could not be provided in their home country.
We are currently faced with a massive task: how do we come up with more long-term immigration solutions? And at the same time, how can we proceed to alert immigrant workers of their rights in the workplace?
If we continue to only implement deterrence strategies and policies, but do nothing to combat the asylum case backlog or address root causes, it is likely that the number of undocumented workers will only rise. These workers arrive and will accept any job that they can find out of the need to survive. They are largely unaware of their rights in the U.S., which puts them at a higher risk of exploitation in the workplace. This misunderstanding of U.S. laws combined with the expenses associated with finding a legal aid or pro-bono attorney to take their case, makes the system nearly impossible for them to navigate.
This is why I want to focus on the intersection of immigration and employment law when I begin law school. There is a massive system of exploitation that preys on these vulnerable people who are trying so hard to make a life for themselves in America. Fortunately, there are legal protections available to them, but it is our job to make sure they are given the opportunity to use them.
Reflections from Charles Joseph
In her essay, Katelyn Deibler identifies a significant issue for workers’ rights––the rights of undocumented employees. While laws against workplace discrimination and sexual harassment cover undocumented employees, many victims are too fearful of the consequences to pursue legal remedies. Similarly, immigrant workers with a visa may fear reporting retaliation or other workplace violations out of concern that losing their job will cost them their visa. As Diebler reminds us, employment lawyers have a special obligation to tackle the exploitative system that often denies legal protections for immigrants.
Katelyn Deibler earned her bachelor’s degree in international service at American University. She currently works as a legal assistant at the National Immigrant Women’s Advocacy Project and will join the American University Washington College of Law in fall 2020.
Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.