UPDATE: July 30, 2019: Gov. Andrew Cuomo signed New York State Senate Bill S5791 on July 29. The law will take effect 90 days after it has been signed, Oct. 27.
- New York's attorney general has announced a bill that would prohibit employers from threatening undocumented workers with deportation if they complain about or report wage and hour violations.
- While state law already makes clear that employers cannot fire, threaten, penalize or otherwise discriminate against a worker who reports or complains about minimum wage, overtime or other related violations, the proposal would amend the law to add that unlawful retaliation includes contacting or threatening to contact immigration authorities about an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee's family or household member.
- Violation of the law would carry a maximum sentence of three months in jail and a fine of up to $20,000, according to the attorney general's office.
Stakeholders say they've seen a spike in reports of employers threatening to call federal immigration agents on workers since the 2016 election, according to an Associated Press report.
California, in particular, has seen an uptick in complaints alleging that employers are threatening to report workers to U.S. Immigration and Customs Enforcement (ICE). And in New York, where this legislation is being proposed, the state labor department said it investigated 30 cases in the last three years involving threats to a worker's immigration status, according to the AP; many of the businesses are in the service, agriculture and construction industries.
Retaliation against employees for complaining about violations is generally considered illegal under federal law regardless of an individual's immigration status, as evidenced by courts' willingness to award damages to undocumented workers. Moreover, employers are required to take steps to ensure that workers are eligible to work in the U.S. All employees must complete a Form I-9 and employers must review all required documentation in person. If problems are discovered, employers should document any corrective action taken and sign and date the form explaining the actions taken, experts previously told HR Dive.
Employers also may want to consider an I-9 process audit. Having an attorneys perform the audit is preferable because they bring fresh eyes and know what to look for, experts say, but a self-audit is the next best thing. ICE and the U.S. Department of Justice have a joint guidance on best practices and things to consider during your audit. It's important to note that audits come with their own risks; they may be outweighed, however, by the benefits of compliance.