Under a new directive issued by President Joe Biden’s White House administration, the Department of Homeland Security (DHS) will grant migrant and undocumented immigrant workers the ability to report workplace violations without jeopardizing their immigration status. 

DHS Secretary Alejandro Mayorkas announced that undocumented workers who are collaborating with federal, state or local labor enforcement agencies can use the deferred action request process on the DHS website to report workplace violations. 

The process will protect them from threats of retaliation due to their immigration status from an abusive employer. The deferred action requests will be submitted through a central intake point with the U.S. Citizenship and Immigration Services, which will forward the requests to Immigration and Customs Enforcement (ICE). Final determinations about workplace violations and deferred action requests will be made on a case-by-case basis. 

“Unscrupulous employers who prey on the vulnerability of noncitizen workers harm all workers and disadvantage businesses who play by the rules,” Mayorkas said in announcing the new directive. “We will hold these predatory actors accountable by encouraging all workers to assert their rights, report violations they have suffered or observed, and cooperate in labor standards investigations. Through these efforts, and with our labor agency partners, we will effectively protect the American labor market, the conditions of the American worksite and the dignity of the workers who power our economy.”

Undocumented African and Caribbean workers, a portion of the 88% of Black immigrants to the United States, are often exploited: They find employment in jobs that pay low wages and with companies that often do not maintain health and safety standards. 

The Migration Policy Institute said that, “Depending on their status, immigrants may be unable to access public benefits such as Supplemental Security Income, which can offset poverty.” In their desperation for work and to stave off abject poverty, undocumented Black foreign workers often accept work roles that make them vulnerable to wage theft, harassment, unsafe working conditions, discrimination and other workplace violations.

“Refraining from reporting violations due to a fear of immigration-based retaliation creates unfair labor market conditions and perpetuates the commission of unlawful and inhumane acts by employers, including nonpayment of wages, the imposition of unsafe working conditions, and chilling workers’ ability to organize and collectively bargain to improve such conditions,” DHS said in a press release.

Carlos’ Law to hold construction firms accountable

In related news, New York Governor Kathy Hochul has signed legislation to create Carlos’ Law, a bill that increases the penalties for construction companies found criminally liable for a worker’s death or serious physical injury. 

Carlos’ Law (S.621B/A.4947B) is named for Carlos Moncayo, a 22-year-old construction worker originally from Ecuador. Moncayo was working for Harco Construction on April 6, 2015, in an unfortified 13-foot-deep trench when the walls of the trench caved in, crushing him with thousands of pounds of dirt. 

Harco Construction had been repeatedly warned that the trench could cave in, and supervisors were told to get their workers out of the space—but did not do so. Harco Construction was found guilty of second-degree manslaughter, criminally negligent homicide and reckless endangerment. The company paid a $10,000 corporate fine for Moncayo’s death, at the time the maximum penalty under New York state law. Now, under Carlos’ Law, the maximum fine for criminal liability jumps to at least $500,000.

“After years of fighting for my sponsored bill, we are relieved that Gov. Hochul signed Carlos’ Law to prevent unscrupulous construction firms from taking advantage of the working-class, especially immigrant workers in my district,” State Assemblymember Rodneyse Bichotte Hermelyn said in a statement. “After several iterations [of the bill], I’m pleased to finally hold construction firms accountable for providing proper workplace training and safety. Carlos’ Law will now force construction firms to value workers’ well-being, instead of writing off serious workplace injuries as a cost of doing business.”

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State Sen. James Sanders Jr., who brought the bill to the Senate, said that Moncayo’s employers were not adequately punished for their negligence. “In his case, justice was not served and his employers escaped an appropriate punishment for criminal actions. Since then, many New York workers have suffered serious injury and even death on the worksite from similar behavior by their supervisors without facing the full consequences of their actions. Carlos’ Law will finally strengthen the law to hold employers duly accountable and help deter future criminal behavior and prevent the injury and death of workers in the future.”

A 2021 report by the New York State comptroller found that immigrants were employed in 53% of New York City’s construction jobs. “Nearly half came from Mexico, Ecuador, Guatemala, the Dominican Republic, China, and Poland,” the report states. “Overall, the construction industry had the second-highest share of foreign-born workers of any sector. The construction industry offers good-paying jobs to workers who have not earned a college degree.”

New York’s construction companies tend to hire undocumented migrant workers, and these workers can too easily be exploited.

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