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New program may create incentive for undocumented workers to report labor and employment violations

1.19.23

Last week, the U.S. Department of Homeland Security announced “Process Enhancements for Supporting Labor Enforcement Investigations.”

Employers beware. This new process increases the likelihood that undocumented workers will pursue labor and employment claims against their employers, including wage-hour and EEO claims.

Of course, it is against the law for an employer to hire a worker who is not authorized to work in the United States, but some do that knowingly or unknowingly for a variety of reasons. The reasons may include a shortage of qualified workers available for hire, a desire to pay the worker less than would be required by law, or the worker’s presentation of false work authorization documents to the employer.

Under the DHS policy announced last week, workers “who are victims of, or witnesses to, the violation of labor rights, can now access a streamlined and expedited deferred action request process” and apply for employment authorization. The program creates two strong incentives for undocumented workers to accuse their employers of violations: (1) deferred action, and (2) the ability to obtain employment authorization.

Deferred action. Deferred action allows undocumented individuals to remain in the United States with no risk of deportation. The usual initial deferral period is two years. Requests can be filed even for those who are already in removal proceedings or already subject to a final order of removal. The DHS explains deferred action as follows:

Deferred action is a form of prosecutorial discretion to defer removal action (deportation) against a noncitizen for a certain period of time. Although deferred action does not confer lawful status or excuse any past or future periods of unlawful presence, a noncitizen granted deferred action is considered lawfully present in the United States for certain limited purposes while the deferred action is in effect.

The new “Process Enhancements” policy furthers the Biden Administration’s desire to protect and to improve the conditions of workers who are exploited. Undocumented workers often fail to report labor and employment violations or cooperate in investigations out of fear of deportation or other immigration-related retaliation by an abusive employer. On the negative side, the new policy provides an incentive for undocumented workers to accuse their employers of labor and employment violations because doing so will protect the workers from deportation.

Employment authorization. The ability to obtain legal authorization to work in the United States is obviously a significant benefit to an undocumented worker. But the Executive branch of the federal government may not have the authority to grant employment authorization to those granted deferred action. That issue is currently being litigated in a case involving the Deferred Action for Childhood Arrivals program before the U.S. Court of Appeals for the Fifth Circuit. A Fifth Circuit panel ruled in November that the benefits of work and return travel authorization for “Dreamers” could be conferred only by Congress, not by the Executive Branch. If that part of the decision stands, it would also in all likelihood apply to deferred action that was granted because the undocumented worker alleged that he or she was a victim of or witness to a labor and employment violation.

Conclusion

The new policy shows that the Biden Administration is serious about helping victims of, or witnesses to, the violation of labor and employment laws and standards, and thus deterring exploitation. However, it may also create an incentive for undocumented workers to bring claims against their employers that have little or no merit.

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