Articles Posted in Immigrant Workers

Lev Craig

On September 6, 2017, a coalition of 16 states filed suit against the federal government in response to the Trump administration’s pronouncement that it would revoke the Deferred Action for Childhood Arrivals (DACA) program established by President Obama. The lawsuit, led by New York State Attorney General Eric Schneiderman and filed in the U.S. District Court for the Eastern District of New York, alleges that rescinding DACA unlawfully discriminates against individuals of Mexican national origin, violates the due process rights of DACA grantees, and negatively impacts states’ residents and economies.

DACA was established by the Obama administration in June 2012 via an executive branch memorandum issued by Janet Napolitano, the then–Secretary of Homeland Security. The policy allowed undocumented immigrants who had arrived in the U.S. before the age of 16 and met certain eligibility conditions to apply to U.S. Citizenship and Immigration Services (USCIS) for work permits and protection from deportation for two years. Immigrants requesting DACA were required to have lived continuously in the U.S. since 2010 and to be currently in school, have a high school diploma or GED, or be an honorably discharged U.S. military veteran. In addition, individuals who had been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, or who USCIS determined would “otherwise pose a threat to national security or public safety,” could not apply for DACA.

By Owen H. Laird, Esq.

Today, May 1, 2017, millions of people around the world will gather to celebrate International Workers Day, also referred to as “May Day.” In many countries across the world, “Labor Day” is celebrated on May 1.  The significance of this holiday grew in the late 19th century, as a celebration of the ascendance of unions, the rights won for workers, and the ongoing fight for justice in the workplace.

While International Workers Day has a long, storied history in the rest of the world, May Day has lost most of its significance for Americans. While most of the rest of the world has an official public holiday on or about May 1, here in the U.S., the official “Labor Day” is observed in September. In the United States, even September’s Labor Day is typically viewed as a holiday marking the end of summer, rather than bearing any special significance about workers’ rights.  There are generally few public ceremonies for May Day in the United States, in large part because of May Day’s socialist roots; the holiday was first declared by the Second International, an influential coalition of labor and socialist organizations dating back to the late 19th and early 20th centuries.

Harrison Paige

The U.S. District Court of Colorado recently certified a class action lawsuit filed against GEO Group, Inc. (“GEO”), a billion-dollar private prison conglomerate. Plaintiffs claim that they were forced to clean the Aurora Detention Facility (the “Facility”) while detained and awaiting immigration hearings, in violation of federal slave labor laws, and that GEO was unjustly enriched by Plaintiffs’ work. This is the first time that a court has certified a class action claiming that a private U.S. prison violated the Trafficking Victims Protection Act (“TVPA”). The TVPA’s prohibitions against forced labor state that obtaining labor or services via means or threats of force, restraint, harm, abuse, threatened abuse of law, or deceptive schemes is illegal. The approval of class action status means that up to 60,000 current and former inmates of the Facility “are now part of the lawsuit without having to actively join as plaintiffs.

First, Plaintiffs claim that GEO violated the TVPA “by requiring detainees to clean the private and common areas of the Facility without any compensation and under the threat of solitary confinement and other punishments.” Allegedly, GEO chooses a handful of inmates each day and forces them to work as janitorial staff for the 1,500-bed Facility, violating Immigration and Customs Enforcement’s (“ICE”) own sanitation policy, which only mandates that “all detainees perform personal housekeeping,” like making their own beds, organizing their bunk area, and keeping the floor free of clutter. The sanitation policy does not include any mandate regarding detainees working as janitorial staff for the entire Facility. Thus, Plaintiffs claim that Facility staff’s threats of solitary confinement and additional criminal charges to solicit detainee labor violates the forced labor provision of the TVPA (18 U.S.C. §§ 1589, 1595).

Edgar M. Rivera, Esq.

The Immigration Reform and Control Act of 1990 created the H-1B nonimmigrant classification, which provides a vehicle by which a qualified alien may seek admission to the United States on a temporary basis to work in his or her field of expertise. An alien may file a H-1B petition to perform (i) services in a specialty occupation, (ii) services relating to a Department of Defense cooperative research and development project or coproduction project, or (iii) services of distinguished merit and ability in the field of fashion modeling. Prior to employing an H-1B temporary worker, the U.S. employer must first file a Labor Condition Application (LCA) with the Department of Labor (DOL) and then file an H-1B petition. The LCA specifies the job, salary, length, and geographic location of employment. The employer must agree to pay the alien either the actual or prevailing wage for the position, whichever is greater.

In Palmer v. Trump Model Management, LLC, Alexia Palmer, a Jamaican fashion model, brought a putative class action against Trump Model Management, LLC (Trump Model Management), for allegedly violating the Immigration and Nationality Act (INA), a federal statute governing U.S. immigration-related matters, including employment of immigrants. Palmer claimed that, for years, Trump Model Management had engaged in a fraudulent scheme whereby the company lures foreign models to the United States with false promises of “a life of glamour in Soho clubs and on catwalks,” lies to the federal government in order to obtain H-1B visas for the models, and then cheats the models out of their pay.  Trump Model Management moved to dismiss the complaint for failure to state a cause of action.

Owen H. Laird, Esq.

Most employees who work in New York City are covered by the New York City Human Rights Law (“NYCHRL”) – one of the most liberal employment statutes in the nation.  This means that employees in New York City are afforded more protection against workplace discrimination and harassment than those who work outside of the City.

At the same time, New York City has one of the highest immigrant populations in the country, and many of those immigrants own or operate businesses in the City.  These immigrant-owned businesses are integral to the fabric of the city, and range from restaurants and corner stores to law firms and tech companies to factories and warehouses.

Yarelyn Mena

As 2015 comes to a close, the Equal Employment Opportunity Commission (EEOC) celebrates its record-breaking year in employee awards from employment discrimination cases. The EEOC earned $525 million for workers after handling nearly 90,000 charges of discrimination filing 142 lawsuits in the year 2015. The EEOC is tasked with enforcing federal laws that prohibit employment discrimination based on race, national origin, color, sex, gender, religion, age, disability or genetic information. Employees who are discriminated against and whose employer is covered by EEOC laws (most workplaces with over 15 employees), have the right to file a charge with the EEOC detailing the discrimination. The EEOC has the authority to mediate or investigate charges. After conducting an investigation, it can make a determination on whether discrimination occurred. If it finds that discrimination did in fact occur, the EEOC can opt to file a lawsuit to protect the rights of individuals and the public at large, or it will allow the employee to seek counsel on his or her behalf to litigate the case.

The EEOC is extremely busy, receiving 89,385 charges in 2015 alone. The EEOC mediated roughly 1 out every 9 charges totaling 10,579 mediations, 78% of which were successful. As a result of the more than 10,000 mediations in 2015, charging parties received $157.4 million. Most of the lawsuits filed by the EEOC were brought under the Americans with Disabilities Act and/or Title VII. Throughout the year the EEOC has had 218 active cases in the United States’ district courts. The EEOC says it received a “favorable resolution” in 89.3% of its district court cases.

Yarelyn Mena and Edgar M. Rivera, Esq.

Recently, The New York Times interviewed over 150 nail salon workers and owners, who revealed a culture of wage theft. According to the interviews, the overwhelming majority of workers were paid below minimum wage, if at all, and workers’ tips were docked as punishment for trivial mistakes. Only 25 percent of the workers interviewed reported earning the New York minimum hourly wage. Moreover, all but three workers reported their wages were illegally withheld. Employers were rarely held accountable for these violations.

Nail salons are particularly common in New York City; their number has tripled in the last 15 years. Nora Cacho, a worker at the nail salon chain Envy Nails in East Harlem, reported that after a 66-hour workweek, she earned approximately $200, including tips, which is effectively a $3 per hour wage. Many patrons are unaware of these appalling violations of the law.

On August 20, 2014, the Sixth Circuit Court of Appeals affirmed decisions by the Department of Labor (DOL) Administrative Review Board (ARB) and the U.S. District Court from East Tennessee in Kutty v. United States Dep’t of Labor, finding employer Mohan Kutty liable for back wages and expenses related to violations of the Immigration and Nationality Act (INA). Kutty was ordered to pay $1,044,294 in damages to seventeen plaintiffs, all physicians who worked at his medical clinics in Tennessee and Florida, plus $108.800 in civil penalties.

The plaintiffs in the case are physicians who were employed by Kutty after entering the United States on J-2 nonimmigrant foreign-medical-graduate visas. These visas allow physicians to remain in the United States for their graduate and medical training, but then require them to return to their home country for two years before applying for H-1B or L-1 visas or Lawful Permanent Resident status. Alternatively, the physicians can be granted a waiver of the two-year home-return requirement if an interested state or federal agency requests a J-1 waiver on his or her behalf. To get this waiver, the physician must submit a waiver application to the U.S. Department of State and demonstrate that s/he has a contract to practice medicine for at least three years in an area designated by the Secretary of Health and Human Services as having a shortage of health-care professionals. Once they have the J-1 waiver, the physician becomes eligible to apply for an H-1B visa. In order to get the H-1B visa, the physician’s employer must sign a Labor Condition application (LCA) with the DOL, certifying that the physician will be paid the greater of (i) the actual wage level the employer paid to other individuals with similar experience for the type of employment at issue, or (ii) the prevailing wage leve for the occupational classification in the area of employment. In this case, Kutty filed LCAs certifying that he would pay each of the physicians $80,000 per year.

Kutty, acting as an executive of the corporate entities that employed the physicians, signed and filed similar LCA’s for all of the plaintiffs. When business encountered financial difficulties, based on statements by the administrator of his Tennessee operations and his own cursory investigation, Kutty accused the physicians of lying about how many hours they were working and began withholding their salaries until they saw more patients. They sent Kutty a letter demanding to be paid according to their contract and threatening to contact the DOL if he did not comply. They further warned Kutty that he was probited from retaliating against employees for reporting violations of the INA. He responded by withholding their pay of the eight physicians who had joined in the letter.

On November 14, 2014, the District Court for the Southern District of New York came down squarely in on the side of the Plaintiff in Juarez v. The Northwestern Mutual Life Insurance Company, Inc. The Court denied summary judgment to the defense, in the process endorsing, echoing, and bolstering the plaintiffs’ arguments that the defendant had acted unlawfully when it refused to hire Ruben Juarez as an intern because, while he had documents authorizing him to work in the United States, he was not a U.S. Citizen and did not hold a green card.

According to the facts alleged in the complaint, Mr. Juarez, a Mexican national residing in New York, interviewed for a position at Northwestern Mutual on December 11, 2013. After the interview he was contacted again by his interviewer, Susan Lewandowski, who asked him whether he was a U.S. citizen or a green card holder. He explained that he had Deferred Action for Childhood Arrivals (DACA) status, which allowed him to remain in the United States for two years and to obtain an Employment Authorization Document (EAD). He further explained to Lewandowski that his research indicated that he could legally work for Northwestern Mutual without a green card or visa. Lewandowski replied “sorry but you have to have a green card.” In fact, on its company website Northwestern Mutual advertises its policy of requiring new interns hold a current student or resident visa.

Juarez alleges that Northwestern Mutual’s decision not to hire him based on its policy of requiring all new hires to have either citizenship or a green card amounts to alienage discrimination. Roughly, everyone who is legally present and authorized to work in the United States has equal right to seek employment. As the Court in this case states quite clearly: “The policy alleged in the Complaint–essentially, ‘Legal aliens without green cards need not apply’–on its face discriminates against a subclass of lawfully present aliens.”

In March 2014, the Federal District Court for Hawaii granted summary judgment to Plaintiff in the case Equal Employment Opportunity Commission v. Global Horizons, Inc. et al. The Court essentially ruled that the Defendants had effectively failed to assert any potentially viable argument denying the Plaintiffs’ allegation that they had engaged in a pattern and practice of discrimination and retaliation that violated Title VII of the Civil Rights Act of 1964. The Defendants, Global Horizons staffing agency plus six companies to whom they supplied workers, were jointly accused of selecting Thai workers specifically for recruitment, then subjecting them to various abuses, based on their belief that Thai workers would be especially inexpensive, complaint, hard-working, and vulnerable. The Court found that the factual allegations were essentially uncontested, and Defendants recognize that the only way to manage the cost of litigation is to settle and cooperate with the EEOC.

The Court’s Order granting Summary Judgment was unusually decisive. For example, after rehearsing a harrowing list of unchallenged accusations of gross abuses to which only Thai workers were systematically subjected, Judge Kobayashi writes that “Based on Global Horizons’s admissions and the uncontroverted evidence that the EEOC has presented in connection with the Disparate Treatment Motion, this court finds that there is no genuine issue of material fact as to the EEOC’s pattern and practice claim of disparate treatment against Global Horizons. This Court finds that the undisputed record in this case establishes that Global Horizons treated the claimants less favorably than other workers because of the Claimants’ race and/or national origin. Further, the disparate treatment of Thai workers was Global Horizons’s standard operating procedure. This Court concludes that the EEOC has established its prima facie case as to its pattern and practice claim of disparate treatment by Global Horizons.”

So far, Del Monte Fresh Produce (Hawaii) Inc. has settled for $1.2 million; Kauai Coffee Company, Inc. for $425,000; Mac Farms of Hawaii, LLC for $1.6 million; Kelena Farms, Inc. for $275,000; and Captain Cook Coffee Company Ltd. for $100,000. The last two settlements also include almost $5 million worth of wages and benefits offered to those companies’ past employees. Two companies have not yet settled: one is Maui Pineapple Company, Ltd.; and the other is Global Horizons, Inc. The latter is the Beverly Hills-based staffing company that recruited and supplied the Thai workers to all of these agricultural companies, so it seems reasonable to expect that the total awards in this case from settlements and/or judgments totals are going to increase substantially before the process is finished. Each of the settlements so far has also included injunctive relief including orders by the EEOC to end the discriminatory practices, to provide training, submit to EEOC data collection and monitoring, institute complaint procedures, post notifications to employees, etc.