LEAP CONFERENCE 2015: 11/13/2015

Immigrant Workers’ RightsAdvocacy:
Immigration and Employment Law Relief for Immigrant Workers

OUTLINE OF PRESENTATION:

  1. Introduction (Ernie Collette – 5 minutes)

The goals of this training are to:

  • Provide guidance to advocates of immigrant workers;
  • Provide a basic overview of employment laws protecting workers, regardless of immigration status;
  • Provide information on T and U visa eligibility for workers’ rights violations;
  • Analyze hypotheticals and work through practical considerations in advocating for immigrant victims of workplace crimes.
  1. Immigrant Workers’ Employment Rights (Anamaria Segura – 20 minutes)
  2. Workers’ Rights Overview
  3. Employment at Will

General rule is that employers are unrestricted in their rights to hire, fire, and set terms of employment, unless there is a written contract providing for specific employment rights, or they are violating one of the laws discussed here.

  1. Basic Protections Against Discrimination

It is illegal to take an “adverse” action against a worker on the basis of their membership in a legally protected class.

  1. Basics of Wage & Hour Law

Federal and state law requires that employees receive a minimum wage, and overtime premium for hours worked over 40 in a week, although there are many exceptions that advocates should be aware of.

  1. Retaliation

It is illegal to take an adverse action against an employee for asserting his or her rights under employment laws.

  1. Employment Law Remedies
  2. Remedies vary widely by statute, but generally, workers with wage claims may recover unpaid wages plus liquidated damages and statutory penalties. Depending on the claim, workers with discrimination claims may be eligible for compensatory damages, punitive damages, reinstatement, back and/or front pay, among other remedies. Many employment statutes also allow for recovery of attorneys’ fees and costs. Considerations for Undocumented Workers

Undocumented workers are covered by all of these laws. However, in some cases, typically those involving illegal termination, their remedies are more limited than those with work authorization.

  1. T Visa Eligibility & Screening (Alice Davis – 20 minutes)
  2. Definitions (General)

T and U Visas confer immigration status on victims of certain crimes.

  1. Definitions (General)

To qualify for a T visa, the worker must be a victim of a severe form of trafficking, physically present in the U.S. as a result of trafficking (but NOT necessarily trafficked into the country), be willing to cooperate with law enforcement, and suffer from extreme hardship if returned home. The definition of labor trafficking involves the use of “force,” “fraud,” or “coercion,” for purposes of involuntary servitude, peonage or debt bondage, or slavery.

  1. Screening tips

Advocates should be on the look out for any level of coercion, including threats, isolation factors, verbal and physical abuse, and economic coercion.

  1. Application process & requirements

Basic components of the application include U.S.C.I.S. forms and the affidavit of the client. The law enforcement affidavit and supporting materials are recommended, but optional.

  1. U Visa Eligibility (Sean McMahon – 20 minutes)
  2. Definitions

To qualify for a U visa, a person must be a victim of a qualifying crime, suffer substantial physical or mental abuse, possess information about the crime, and have been helpful or likely to be helpful for law enforcement. While many crimes qualify individuals for U visas, in the employment context these crimes are typically related to trafficking, or are process crimes that arise when the perpetrator has tried to intimidate, retaliate against, or defraud the worker. Examples includevisa fraud, involuntary servitude, sexual harassment, and obstruction of justice or witness tampering. Substantial abuse is determined by factors such as the nature of the injury, the severity of the perpetrators conduct, the severity of the harm, and the duration of the harm.

  1. Screening tips & eligibility

Advocates should carefully examine whether substantial harm symptoms exist, including depression, PTSD, anxiety, and other mental and emotional health problems. A U visa applicant must have a certification from law enforcement as well.

  1. Application process: law enforcement certification & application process

Basic components of the application include U.S.C.I.S. forms, the affidavit of the client, and a law enforcement certification. Law enforcement agencies have different procedures for seeking and granting U visa certifications.

  1. Case Studiesfor Discussion (Panel, with Ernie facilitating – 20 minutes)

Panelists will present three hypothetical cases involving potential U & T visa trafficking claims. They include a potential U visa claim based on perjury or obstruction of justice, a potential U visa based on sexual assault and threats of deportation, and potential T visa claim based on debt peonage.

  1. Questions and Answers (Panel, with Ernie facilitating– 15 minutes)
  1. Handouts
  2. Anti-Discrimination Statutes Chart
  3. Contact List for Law Enforcement Agencies
  4. Trafficking Victims Protection Act Definitions
  5. Sample U-Visa Decision
  6. Hypotheticals for Discussion