What Unions Can Do To Help Immigrant Members

The National Immigration Law Center has this helpful information for unions that want to help their members in this time of ICE raids:

If you belong to a labor union, there are ways it can help you. You should talk to your union representative about your concerns. If it would make you feel more comfortable, ask some of your co-workers to go with you to talk to your representative. Your union contract might have language that protects union members, such as an agreement with the employer that has one or more of the following provisions:

• The employer will not allow any Immigration officers to enter the workplace without a valid warrant signed by a federal judge or magistrate
• The employer will immediately notify the union if the Immigration authorities contact the employer for any purpose so that the union can take steps to inform its members about their legal rights or to help them obtain legal assistance.
• The employer will allow lawyers or community advocates brought by the union to interview employees in as private a setting as possible in the workplace. The union might also have a legal plan, which provides workers with immigration attorneys.
• The employer agrees not to reveal the names, addresses, or immigration status of any employees to Immigration, unless required by law.
• The employer will not participate in any computer verification of employees’ immigration or work authorization status.

I hope labor unions that don't have these provisions in place will look at ways they can negotiate to help their immigrant members.

What To Do If ICE Shows Up At Your Workplace (For Employees)

Since it looks like the ICE raids have started, I thought I'd publish this helpful information put out by Penn State Law's Center for Immigrants’ Rights Clinic:

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights.  

If immigration officers (ICE) come to your work place, they must have a valid search warrant or the consent of your employer to enter non-public areas. If you are undocumented and immigration officers come to your work place, be aware of the following: 

• Do not panic and do not run away. If you are frightened and feel like you need to leave, you can calmly walk toward the exit. 

• If you are stopped, you may ask if you are free to leave. If the officer says no, do not try to exit the building. 

• If you are questioned, you may tell them you want to remain silent. 

• You have the right to remain silent. You do not need to speak to the immigration authorities or answer any questions. 

• If you are asked where you were born, or how you entered the United States, you may refuse to answer or remain silent. 

• If you choose to remain silent, say so out loud. 

• If they ask you to stand in a group according to immigration status, you do not have to move, or you can move to an area that is not designated for a particular group. 

• You may show a know-your-rights card to an officer that explains that you will remain silent and wish to speak to a lawyer. 

• You may refuse to show identity documents that say what country you are from. 

• Do not show any false documents and do not lie. 

• You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer. 

• Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one. 

• If you have a lawyer, you have the right to talk to them. If you have a signed Form G-28, which shows you have a lawyer, give it to an officer. 

• If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers. 

• You also have the right to contact your consulate. The consulate may be able to assist you in locating a lawyer. 

• You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer. 

• If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before you sign it.

Even if you aren't an immigrant, you can help coworkers by having this information handy in case of an ICE raid.

My 2018 Predictions

Okay, okay. So I've been promising these for awhile. It has taken me a bit to wrap my head around things that have happened so far since the presidential election. The good news is that the GOP remains the party that couldn't shoot straight (no pun intended). So far, little has been done against employees on the legislative front. It's mostly been done by executive order.

So what can we expect for the rest of 2018? Here are my predictions:

Sexual harassment: Despite all the brouhaha on #MeToo and sexual harassment, no new legislation will pass and we'll see some judicial and jury decisions penalizing sexual harassment victims. There will be backlash, and lots of it.

Agcncy paralysis: With cuts to EEOC, DOJ and NLRB, these agencies will develop backlogs and go into paralysis. Employees can expect little help from the feds this year. The one hopeful thing I see is that EEOC mediations are still going strong. The EEOC mediators, at least down here, are some of the best I've ever seen, government or private. We will still see cases resolved in EEOC mediations unless the mediation program is cut too.

Guns at work: Thanks to high school students down here, we may start to see states revisiting those idiotic guns at work laws that have been all the rage. On the other hand, the orange one is pressing to arm teachers in classrooms. What could possibly go wrong? I think we will actually see some baby steps on common sense gun control for the first time in this country in a long time. It will take awhile, probably years, but there will probably ultimately be a drop in workplace shootings if these laws pass.

Immigration raids: We've already started to see employers being raided to round up illegal immigrants and arrest the bosses for hiring them. We're also seeing traffic stops to round up immigrants. That will continue. Employers  and employees beware.

Antitrust: The Department of Justice has announced it will start cracking down on no-poach agreements between employers. That's a ray of sunshine in what will be an awful year for employees. I would caution employers who threaten to sue competitors for hiring former employees, then quietly settle with a no-poach agreement. The government will come after you as well as my colleagues and me for these illegal arrangements.

LGBT rights: The courts will continue to battle over whether or not Title VII'a sex discrimination prohibition covers sexual orientation. I don't think the Supremes will get to the issue this year, so we'll have a split among circuits on this. So far, the 2nd and 7th Circuits say it's covered. The 11th, which covers my home state of Florida, says no.

Marijuana crackdowns: I've been predicting for awhile that the feds will start cracking down on legal marijuana use. It's still illegal on the federal level, no matter what your state says. That handy-dandy card allowing you to buy will be a nice tool for the feds to use to claim probable cause to search your house. They'll probably go after growers and dispensaries first, but if people don't rise up and resist, they'll come after individuals next. I'm guessing the crackdown this year will be on the businesses, not on individuals.

Overall, this won't be a good year for employee rights. But then, you knew that already. Resistance is not futile.

H-1B Workers Have Rights Too

Over at Ask A Manager, Mike C. asked me this excellent question:

In my experience in the biotech industry, it always feels like the H1-B folks are indentured servants who are constantly afraid of being fired and deported. They’re generally expected to work for longer hours and seem to get less pay for their work.
What sorts of practices are legal/gray area/illegal regarding the treatment of H1-B visa holders? If I see illegal practices, who should they report complaints to?
Thanks for your consideration!

            Just because you’re here on a visa doesn’t mean you have no rights. The Immigration and Nationality Act gives workers who are here on work visas, and U.S. workers employed by an H-1B dependent employer, certain rights.

            H-1B workers have rights which include:

·         Copy of the Labor Condition Application: In this application, the employer must agree to pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; offer benefits on the same basis as for U.S. workers; provide working conditions for immigrant workers that will not adversely affect the working conditions of workers similarly employed; not employ an immigrant worker at a location where a strike or lockout in the occupational classification is occurring; notify the agency handling the visa applications of any future strike or lockout; and within 30 days before the date the application is filed, provide notice to the bargaining representative or employees of the employer's intent to hire H-1B, H-1B1, or E-3 workers.

·         Wages: The employer has to pay at least the same wage rate paid to similar US employees or the prevailing wage for the occupation, whichever is higher.

·         Non-productive time: If the employee can’t work due to the employer’s or worker’s lack of a license or permit, they still have to be paid for their time.

·         Fringe benefits: They must receive benefits on the same basis as other employees.

·         Penalties: There can be no penalty for leaving employment before an agreed date, but there can be “liquidated damages” under relevant state law for anticipated damages due to a breach of contract.

·         Rights as employees: Immigrant employees have the same federal, state and local rights as all employees under laws such as the Fair Labor Standards Act, Family and Medical Leave Act, Title VII (except they can’t bump an equally or better qualified U.S. worker from a job), COBRA, and other employment laws.

U.S. workers and applicants have rights if their employers also employ H-1B employees, which include:

·         Layoffs: They can’t be laid off within 90 days before or after the employer files a petition to employ an H-1B worker in an equivalent job.

·         Hiring priority: The employer must offer the job to any U.S. worker who applies and is equally or better qualified than the immigrant worker.

·         Wages: They must be paid wages at least equal to any H-1B worker in the same or equivalent position with similar experience.

            Both U.S. and immigrant workers have these rights:

·         Retaliation: Employers cannot intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B, H-1B1, or E-3 provisions or for cooperating in an official investigation of the employer's compliance.

·         Examine records: All employees have the right to examine the employer’s records that they are require to maintain regarding their compliance with the law.

            The Department of Labor has a detailed fact sheet about employer responsibilities, employee rights and penalties here. The Department of Justice enforces violations, and penalties can be severe.