Newly released Department of Homeland Security Guidelines detail process with federal, state, and labor enforcement agencies to better enforce employment laws. Advocates cite concerns and positive developments.
Kara Rodriguez, Raise the Floor Alliance
After months of local and national worker and immigrant organizations’ advocacy, today the Department of Homeland Security (DHS) issued a press release and official guidelines on its 2021 announcement to grant immigration relief to undocumented workers who experience or witness workplace violations.
Immigration relief through the DHS policy would allow all workers, particularly undocumented workers to participate in workplace investigations without the fear of immigration-related retaliation. In response to the DHS policy, the US Department of Labor (DOL), which oversees wages and health and safety, and the National Labor Relations Board (NLRB), which oversees workers’ right to organize, issued memos on their new processes to advance the Department of Homeland Security (DHS) policy in July 2022 and November 2021, respectively.
"Our country’s labor agencies critically rely on workers to sound the alarm on predatory employment. When workers are meaningfully protected from threats of immigration retaliation, they have more security to fully participate in workplace investigations without fear of employer intimidation or harassment. This DHS policy is an important step to not only challenge the culture of fear that compromises the efficacy of our labor laws, but also aids brave whistleblowers to ensure all workers are treated with respect.” said Sophia Zaman, Executive Director of Raise the Floor Alliance, based in Chicago.
Under the DHS policy and agency guidelines, workers whose rights are being violated can potentially apply for immigration relief via the following process:
- Workers or their representatives file a complaint reporting a violation of their rights under the DOL or NLRB
- The DOL or NLRB investigates the employer. If the agency certifies there is a labor dispute, it can request that DHS grant temporary immigration relief to workers at that worksite.
- Workers can then individually apply to DHS for prosecutorial discretion/immigration relief.
- If immigration relief is granted by DHS, workers are also eligible for temporary work authorization.
Arise Chicago worker member and Board member Alfredo Sanchez emphasized the need for the new process because of fear created by violating employers, "I know from personal experience what it is like to have your employer violate rights, and to be scared to speak up. I had a very abusive employer who made physical threats and actions against me and my family. So I know how hard it can be to speak up. I found Arise Chicago and they supported me to take action. Because I was a victim of a serious crime by my former employer, I was able to apply for a U-visa. No worker should have to suffer such extreme abuse or to suffer physical violence in order to stand up for their rights and be protected. This new process will support more workers to stand up for their rights.”
With the new DHS process, Sanchez offers a call to action to workers and advice to employers, “I want to encourage workers to organize and stand up for their rights! And I want employers to know that they can’t get away with making immigration threats to try and scare their workers from taking action.”
Key Content in New Guidelines
The newly released guidelines raise both concerns and offer positive new information for workers.
DHS announced a streamlined process to “expedite” applications. However, no timeline was assigned. Based on recent experience, Raise the Floor Alliance and its member worker centers will push DHS to act within 30 days. DHS itself points out in its press release that swift action is critical for workers facing abuse and employer retaliation. Additionally, the announced “streamlined” process requires all applications be sent to one office in Montclair, CA. Many advocates worry that having one office in California as the centralized site will cause a backlog of cases, thereby slowing down the process.
While the guidelines raise the above concerns, there are also positive new developments. Federal agencies including the DOL and NLRB have already been able to provide support letters to workers for the DHS process, but it was unclear if state and local agencies would be able to do the same. The guidelines clarify that state and local agencies, such as the Illinois Department of Labor and the Chicago Office of Labor Standards are now also able to send support letters for workers experiencing labor violations.
Another positive development is that workers who file for immigration relief through the DHS process can also now concurrently file for employment authorization, rather than having to wait. Advocates encourage United States Citizenship and Immigration Services to process applications for work authorization quickly, thereby helping interrupt immigration-related fear and control tactics utilized by employers.
In an overarching positive step, DHS also today signaled to worker advocates that DHS is shifting enforcement from sweeps to holding employers accountable.
Benefits to Workers
Despite the DHS delay, the NLRB and DOL issued their own guidelines in November 2021, and July 2022, respectively. If workers are currently experiencing violations of laws enforced by either agency, they can request the agency issue a letter indicating the labor agency’s support for immigration relief from DHS.
Commenting on the importance of protecting the right to organize for all workers, Laura Garza, Worker Center Director at Arise Chicago said, “The most important right workers have is to organize to demand better wages, working conditions, paid time off, equal pay, and end to sexual harassment. It's a right that applies to all workers regardless of immigration status, race or gender. The DHS announcement and guidelines provide stronger protection for all workers, and encourages workers to exercise their right to organize.”
For example, if workers experience wage theft or health and safety violations, they can file complaints with the Department of Labor’s Wage and Hour Division or the Occupational Safety and Health Administration (OSHA) respectively. They can petition the WHD or OSHA to support a request for immigration relief from DHS while the agency conducts its investigation. Similarly, if workers face retaliation for taking collective action to enforce their rights, including organizing on the job, they can file with the National Labor Relations Board and petition the NLRB to request support from DHS in protecting participating workers through immigration relief.
Raise the Floor Alliance and its member worker centers in Chicagoland work to address and prevent workplace abuse and to improve working conditions in Illinois through direct worker organizing and policy campaigns. The DHS policy and new guidelines provide another tool for workers seeking to protect their rights.
Arise Chicago, Centro de Trabajadores Unidos: Immigrant Worker Project, Chicago Community and Worker Rights, and Warehouse Workers for Justice are Raise the Floor member worker centers who are educating workers on the new DHS process.
Arise Chicago member and domestic worker Sofia Magdalena Portillo, encourages workers to utilize this new tool, “As immigrants, we are workers who are often forgotten. But we are workers and we have rights! This is a small step in alleviating the long time abuse and violation of rights undocumented workers have faced. With this new process, it's possible to be more protected for speaking up on the job. Now is the time to organize and take action at work!"
“Immigrants play a key role in our workforce as essential workers, but some employers take advantage of their vulnerabilities and abuse the workers,” said Jose Frausto, Leadership and Advocacy Manager of Chicago Workers Collaborative. “The DHS guidelines are important in protecting workers ability to speak-up in case of illegal activities or unsafe conditions in the workplace without fear of deportation.”
Support for Workers in New DHS Process
It is important for workers to fully understand the process and what is required to qualify for temporary immigration relief. Workers must file with the Department of Labor or National Labor Relations Board demonstrating that there is a labor dispute at their workplace. Immigration relief is not automatic at that stage. Workers have to individually apply for immigration relief to DHS.
“It is critical to understand that workers eligible under the new Guidelines published by DHS must be actively assisting or able to assist government agencies responsible for enforcing labor laws in the United States. This means that organizing workers and workers who want to bring workplace abuses to light should make every effort to assist labor investigators. While we are waiting for clearer indications from the U.S. Equal Employment Opportunity Commision and from Illinois labor agencies, the federal Department of Labor and Occupational Safety and Health Administration have signaled that they are ready and willing to provide letters of support requesting that DHS help protect the integrity of labor investigations by granting deferred action to participating workers” said Kevin Herrera, Raise the Floor Alliance Legal Director.
Because of the several steps required in the new process workers should make sure they understand all requirements to take action. For support, workers should reach out to trusted community organizations, including Raise the Floor Alliance member worker centers to receive accurate information and to avoid predatory actors looking to profit. Sadly in several past instances of new workplace or immigration policies, prodatory actors have advertised guaranteed outcomes for high fees without following through. While workers should be aware of bad actors, that should not prevent them from taking action to uphold their rights.
“We applaud DHS’s decision to announce the last piece of that puzzle today by indicating to workers exactly what they need to qualify for immigration protections as collaborators in federal investigations. We look forward to assisting workers at all stages of the process, including in following the specific instructions set out by the new DHS guidelines. We will also hold DHS accountable for abiding by its side of the bargain and assuring that it is safe for workers to help the government hold exploitative and abusive employers accountable” said Raise the Floor Alliance’s Herrera.
DHS Focus on Abusive Employers
Unscrupulous employers steal wages and abuse the rights of immigrant workers by preying on their fear of negative immigration actions. Such violations break several laws, harm workers, their families, and create unfair advantages over law-abiding employers. When workers push back to assert their rights, employers frequently threaten them based on their known or perceived immigration status, hoping that this intimidation will shield the employers from accountability. In the face of this ongoing problem, and in order to uphold U.S. employment laws, protect workers and law-abiding employers, the Department of Homeland Security policy declares a focus on abusive employers. Part of the policy includes ensuring all workers can fully participate in workplace investigations by federal agencies, namely the Department of Labor (DOL), and the National Labor Relations Board (NLRB).
“The right to a safe job is fundamental. Yet, too often, unscrupulous employers prioritize their profits over workers, with cost-cutting measures leading to unnecessarily unsafe working conditions and rampant injury, illness, and death,” said Marcos Ceniceros, Executive Director at Warehouse Workers for Justice, “These DHS guidelines will help us ensure the full promised protections for immigrant workers who report health and safety abuses, and hold employers accountable to keep workers safe.”
“Wage theft undermines the economic stability of low-income communities and is made possible by employers who use threats to quiet worker voices. In order to guarantee full wages, we need to remove barriers to organizing. Now that undocumented workers can request immigration relief, we’ll be seeing more workers unafraid to come forward despite threats of retaliation.” said Miguel Alvelo-Rivera, Executive Director of Latino Union
National-Level Advocacy to Secure DHS Guidelines
Local and national organizations including Arise Chicago, Raise the Floor Alliance, NDLON, NILC,and NDWA have been demanding DHS release guidelines to provide clear information to workers and worker organizations. Arise Chicago created a DHS Process Resource Guide to gather information and materials regarding the DHS announcement.
The Department of Homeland Security (DHS) announced the new policy in October 2021 stating that it would approve immigration relief for undocumented workers who are facing labor disputes in order for labor enforcement agencies to complete their investigations, and hold violating employers accountable. Though the policy has been in effect, only after months of advocacy and organizing by worker and immigrant organizations, did DHS today issue comprehensive guidelines.
The Need for Immigration Protection for Workers
Immigrant workers face high levels of wage theft, retaliation, and intimidation. This often includes immigration-related threats and intimidation to prevent workers from speaking up or enforcing their rights.
While all workers in low-paid jobs face legal violations, immigrant workers face particular threat regarding their known or perceived immigration status. This makes immigrant workers more vulnerable to abuse.
A University of Illinois at Chicago study found that employers of low-paid workers in Cook County steal $7.3 million in wages weekly. And that immigrant workers are 150% more likely to experience wage theft than their U.S.-born counterparts.
Raise the Floor’s 2017 Survey, “Challenging the Business of Fear,” found that 2 out of 3 non-citizen workers have faced retaliation for standing up for their rights on the job. The report also found that non-citizen workers reported the highest rate of being compelled by fear to remain silent about workplace violations. Additionally, after a fear of being fired, immigration action was the second most common threat workers faced from their employers.
This climate of fear means that government agencies charged with enforcing worker rights are not fully able to complete their mandates. If workers are fearful of negative employer action or retaliation and do not fully participate in agency investigations, unscrupulous employers cannot be held accountable for wage theft, unsafe conditions, and repressing workers’ right to organize. Such employers undercut law-abiding employers and bring down work standards for all workers.
In its October 2021 memo, DHS noted that in order for federal employment enforcement agencies to carry out their work, DHS needed to ensure that workers could fully participate in workplace investigations. By providing temporary immigration protections, all workers, regardless of status can participate in workplace investigation without the fear of deportation or other negative action.
Our worksite enforcement efforts can have a significant impact on the well-being of individuals and the fairness of the labor market. Our accomplishments in this area make clear that we can maximize the impact of our efforts by focusing on unscrupulous employers who exploit the vulnerability of undocumented workers. These employers engage in illegal acts ranging from the payment of substandard wages to imposing unsafe working conditions and facilitating human trafficking and child exploitation. Their culpability compels the intense focus of our enforcement resources.
In addition, unscrupulous employers harm each worker competing for a job. By exploiting undocumented workers and paying them substandard wages, the unscrupulous employers create an unfair labor market. They also unfairly drive down their costs and disadvantage their business competitors who abide by the law.
We can most effectively protect the American labor market, the conditions of the American worksite, and the dignity of the individual by focusing our worksite enforcement efforts on unscrupulous employers.
The memo goes on to outline its goals:
Our Department has a critical role in ensuring that our Nation's workplaces comply with our laws. To best achieve this goal, we must adopt immigration enforcement policies to facilitate the important work of the Department of Labor and other government agencies to enforce wage protections, workplace safety, labor rights, and other laws and standards. We will serve these important interests by adopting policies and practices that achieve the following:
- Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents;
- Increase the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations; and,
- Broaden and deepen mechanisms for coordination between the Department of Homeland Security and the Department ofLabor, the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.
The National Labor Relations Board issued its own memo on its response to DHS in November 2021.
The Department of Labor issued its response and FAQ on the DHS policy in July 2022.
Raise the Floor Alliance is a coalition of Illinois worker centers. Raise the Floor Alliance worker center members: Arise Chicago, Centro de Trabajadores Unidos: Immigrant Worker Project, Chicago Community and Worker Rights, Chicago Workers Collaborative, Union Latina, Warehouse Workers for Justice, Workers Center for Racial Justice