Antonio’s employer owed him more than $3,000 in unpaid wages but was avoiding his calls. A group of volunteers with Centro Humanitario para los Trabajadores, a worker center in Denver, accompanied Antonio to serve his employer a wage demand.
He was scared because his employer was not only aggressive but also knew Antonio was undocumented. Although employers can face legal sanctions for knowingly hiring unauthorized immigrant workers, loopholes make it easy to get away with doing so, giving unscrupulous employers leverage to intimidate their workers.
The employer came out yelling and, although he was the one breaking the law, called the police to try to prevent Antonio from approaching his home with the demand letter.
Although wage theft can carry criminal penalties in Colorado, the police declined to get involved, believing the matter to be a civil dispute not warranting police intervention. The officers suggested Antonio could simply take his employer to court. But that was exactly what he was trying to do by serving his employer a demand for wages. Such are the imbalances of power undocumented workers confront.
Little wonder, then, that this episode emboldened the employer to use the authorities as a weapon to silence Antonio. As Antonio drove away, he received threatening text messages from his employer referring to his immigration status and where he lived. Antonio worried for his safety and that of his family. He also worried his employer would report him to immigration authorities.
Using immigration status to threaten workers is an illegal form of retaliation for asserting rights under both federal and state employment laws. But that doesn’t stop deportation proceedings if the immigration authorities respond to an employer’s tip.
It’s time for the government to disentangle immigration enforcement from workplace justice. The Department of Homeland Security recognized that in an October 2021 memorandum calling on various government agencies to collaborate to protect immigrants who stand up for workplace rights. The department recognized that the threat of immigration enforcement unfairly deters exploited workers from reporting workplace rights violations, and recommended guidance to cease mass-scale raids, alleviate witness fears of reporting workplace abuse, and develop forms of immigration relief for workers who experience or witness workplace exploitation and collaborate with law enforcement.
Yet more than a year later, there are still no clear guidelines from the Department of Homeland Security describing how workers can protect themselves from immigration consequences when they stand up for workplace rights. On Nov. 17, more than 300 worker-centered organizations, such as Jobs with Justice and Towards Justice, sent a letter to the secretary of the Department of Homeland Security, Alejandro Mayorkas, urging him to immediately release written guidance that clarifies the process by which workers with precarious immigration status who are victims or witnesses of workplace exploitation may seek prosecutorial discretion, including deferred action or parole, or other forms of immigration relief.
Meanwhile, in the absence of clarity, employers continue to silence undocumented workers and get away with exploitative workplace practices. Immigrant workers still face extraordinary risks if they report abuses. Employers like Antonio’s continue to enjoy relative impunity, which gives unscrupulous employers an unfair competitive advantage over others who play by the rules.
Worker centers, which organize immigrant workers, fight for better wages and working conditions, and prevent exploitation are limited when they cannot ensure that coming forward will not invite extraordinary risks, as was the case with Antonio. What’s more, when the most vulnerable are fearful to report violations in their workplaces, this lowers wages and worsens working conditions for all of us.
Antonio tried to defend his rights, but without safeguards from deportation, he couldn’t protect himself from retaliation. A clear process for accessing prosecutorial discretion when involved in labor disputes would help workers like Antonio to vindicate their rights, increase their willingness to collaborate with law enforcement, and root out bad employers. It would also help law enforcement identify serious abuses that are currently shielded by power dynamics that silence workers.
In Denver, the City Council also has an opportunity to support workers locally by amending Chapter 58 of the Denver Revised Municipal Code. The proposed wage theft ordinance brought forth by a coalition of labor unions, Towards Justice and Colorado Jobs with Justice, would expand the authority of Denver Labor, a division of the auditor’s office, and extend liability to actors up the chain that benefit from the labor violations of their subcontractors. This bill will help prevent wage theft and unfair competition while helping workers like Antonio recover their legally earned wages.
Sofia Solano, of Denver, is the organizing director at Colorado Jobs with Justice.
Rebecca Galemba, of Denver, is an associate professor and co-director of the University of Denver Center for Immigration Policy & Research.
Nina DiSalvo, of Denver, is the policy director at Towards Justice.
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