Immigration Legislation Would Improve the Labor Market by Protecting Undocumented Workers from Employer Retaliation

A disturbing report in the Huffington Post serves to remind us what abuse and exploitation of undocumented immigrant workers looks like in the U.S. labor market. Antonio Vanegas, an undocumented immigrant worker who complained to the Department of Labor (DOL) and spoke out publicly by testifying to the Congressional Progressive Caucus about alleged wage and hour violations committed by his employer, Quick Pita (in Reagan National Airport), soon thereafter found himself in detention and deportation proceedings. And this happened despite the fact that DOL agreed to investigate Quick Pita based on Vanegas’s claims that he was earning $6.50 an hour (the local minimum wage is $8.25) and working 60 hours per week without being paid for overtime. Occurrences like these are probably not uncommon and are a legitimate reason for all U.S. workers to be concerned. If S.744, the comprehensive immigration reform legislation passed by the Senate, becomes law, some of the bill’s provisions would protect vulnerable undocumented workers like Vanegas and improve the labor market for American workers too.

The situation Vanegas found himself in illustrates how employers use the immigration status of undocumented workers to keep them from demanding that their employers obey the law or from engaging in union organizing activities. As cases in the past have demonstrated, however illegal its own conduct might be, an employer can simply fire an undocumented worker without justification and without worrying about being held accountable for retaliating or other legal violations, or for paying back wages. Or an employer can fire undocumented workers as the result of a “self-audit” of the company’s employment records, or after inviting the government’s immigration authorities to conduct an audit. Ultimately, the undocumented worker is terminated, deported, or both, and has limited access to legal remedies. Although ironically Vanegas worked for years in a building that also houses the Department of Homeland Security’s immigration authorities, he never had a problem until he advocated that his employer comply with the law. Almost immediately after that, he was put in a cage for four days and subjected to deportation proceedings.

Two key provisions in the Senate bill would protect workers like Vanegas who blow the whistle on employers who exploit them. First, “U” visas—for victims of criminal activity—would become available for undocumented workers who file legitimate complaints about serious workplace abuse, exploitation, retaliation or violation of whistleblower protections and are helpful to the government’s investigation or prosecution. A U visa would give whistleblowers like Vanegas a temporary legal status and the eventual possibility to apply for permanent residency. Under current U visa law and regulations, Vanegas would not be likely to qualify for such relief, but the Senate bill expands the U visa definition to protect workers in his situation, while increasing the number of visas that become available each year. In addition, while their U visa application is pending or an investigation is ongoing, undocumented workers can be granted a temporary work authorization so they can continue to earn enough to survive if their employer has fired them for complaining about violations or criminal acts. The parts of the bill that would accomplish this reflect earlier legislative proposals in the POWER Act, originally introduced in the House by Rep. Judy Chu (D-Calif.) and in the Senate by Sen. Robert Menendez (D-NJ).

Secondly, the bill remedies the U.S. Supreme Court’s terrible decision in the Hoffman Plastics v. NLRB case, which prohibits undocumented workers from being awarded back pay they would otherwise be entitled to had they been authorized to work. In addition to back pay, if an undocumented worker is able to obtain legal status by virtue of being granted a U visa or through some other avenue, under the Senate bill the worker could also be reinstated at his old job. Since undocumented workers would no longer have to fear losing the wages they’re entitled to and being deported if they blow the whistle on their employers, they would be able to assist the government in taking on and exposing employers that violate labor and immigration laws in order to increase their profit margins.

If these protections in the Senate bill ever become law they will help even the playing field for U.S. workers in similar occupations by holding law-breaking employers accountable. U.S. workers would no longer have to compete with exploitable and deportable workers who have no recourse if their unscrupulous employer fails to pay them the legally required minimum wage and overtime rates.

As someone who cares about the rights of workers regardless of their immigration status, I am disappointed because I don’t believe the Senate bill’s provisions to legalize the undocumented immigrant population will be adequate. The requirements for legalization, permanent residency and citizenship are sure to leave millions behind without legal status, thanks to punitive fines and unreasonably restrictive employment and income requirements. However, the bill certainly goes in the right direction by including these new protections for brave undocumented workers like Vanegas who stand up against the employers that abuse and exploit them.