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Immigrant Rights and Workers’ Rights Protection

Think it’s an oxymoron? Think again

November 15, 2019 Photo

In today’s political climate, immigration—or rather the control of it—has been a hot topic. Many undocumented workers fear the risk of deportation due to Immigration and Customs Enforcement (ICE) raids that have been taking place across the county. Unfortunately, this fear translates into work environments that are often unsafe and unsanitary. Undocumented workers are often forced to work long hours, injured on the job, and need proper medical assistance as a result. However, these workers do not commence claims out of fear of retaliation in the form of deportation.

According to The Economist article “Wage War: Who Are the Main Economic Losers From Low-Skilled Immigration?” as of 2016, five percent of the workforce is comprised of undocumented workers. Public Radio International’s The World concluded, in “For Undocumented Workers, Demanding Better Work Conditions Could Mean Deportation,” that employers rarely face prosecution as a result of hiring immigrants without proper documentation. That same article says that only 11 employers were prosecuted from April 2018 to March 2019, according to a recent report by Transactional Records Access Clearinghouse (TRAC) at Syracuse University. During the same period, however, more than 85,000 individuals were prosecuted for illegal entry to the U.S., the report states.

What Can Be Done?

Undocumented workers need to be made aware that they have access to workers compensation benefits and protections. Particularly in New York, undocumented workers can commence a workers compensation claim even if paid off the books, and these benefits include medical treatment, pay for lost wages due to time out of work caused by the injury, and protection from retaliation. The New York Workers’ Compensation Boards across the New York metropolitan area also provide lists of attorneys and law firms that will provide proper representation, and these attorneys do not have to be paid by the worker. The attorneys and legal representatives are paid solely by collecting a percentage of any monetary awards made to the worker.

One of the ways in which an employer may try to fight a workers compensation claim is by asserting that the undocumented worker is merely an independent contractor and not a covered employee of the company. However, if the undocumented worker can prove that the employer exerted control over them, then the worker can receive workers compensation benefits. Control includes, but is not limited to, the setting of hours, being given a uniform, or being given an identification card.

Unfortunately, many immigrants are scared to commence lawsuits and seek protection under workers compensation laws due to a lack of knowledge. Nonetheless, New York Attorney General Letitia James has been hard at work to curtail how employers have been taking advantage of undocumented workers when it comes to fair labor practices and protection. For instance, Anna Sanders’ Daily Beast piece from September 2019, “Immigrant Health Aide Workers Threatened With Deportation After Complaining About Unpaid Wages, NY Attorney General Says,” reports that James helped undocumented health aides collect more than $450,000 in back pay and benefits because these workers were threatened with deportation for complaining about their poor work conditions.

I think that the best way to resolve this knowledge gap is to go into our communities, disseminate the proper information, and allow people to ask questions. I believe immigrants are the bedrock of this nation, and they deserve to be protected by the laws that have been put into place to do just that.

About The Authors
Moya M. O’Connor

Moya M. O’Connor is a senior trial attorney at MetLife and serves as the founder and CEO of Caribbean Attorneys Network Inc.  moya.m.oconnor@metlife.com

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