Unity Blueprint Labor Initiative
Achieving maximum protection of the labor rights and working conditions of U.S. and immigrant workers
In order to fully protect U.S. workers, reduce to the maximum extent possible the unlawful exploitation of immigrant workers, and the incentive of some employers to hire undocumented workers rather than US workers, all workers, including undocumented immigrants, must have full and complete access to protective labor, health and safety laws. This is the most rational and possibly the only realistic approach to protect the interests of US workers while at the same time protecting immigrant workers from exploitation in the labor market.
A. Repeal Current Employer Sanctions Laws
Current employer sanctions laws have undermined labor rights, caused racial and national origin discrimination, and have been largely ineffective in reducing the employment of undocumented workers as employers simply pass on the costs of sanctions to immigrant workers and consumers. The current regime of employer sanctions should be repealed. To best protect the rights and working conditions of US workers, the focus of workplace enforcement should be on requiring employers to maintain legal standards in wages, working conditions, and the unionizing rights of workers. We do not oppose enactment of new employer sanctions related to employers’ violations of the labor rights of immigrant workers.
B. Bring Antidiscrimination Protections in the Immigration and Nationality Act into Line with Those in Other Civil Rights Laws
In the event that employer sanctions are not repealed, the anti-discrimination protections in section 274B of the Immigration and Nationality Act (INA), which were added by the Immigration Reform and Control Act of 1986, were enacted to address discrimination that was expected to result— and, in fact, has resulted —from the implementation of employer sanctions. While the INA’s antidiscrimination protections have been critical in protecting thousands of workers from discrimination, tens of thousands more workers are excluded from its protections and remedies because of the law’s limitations. The following provisions would bring INA section 274B into line with other civil rights laws — such as Title VII of the Civil Rights Act — that prohibit discrimination based upon race, color, national origin, religion, and gender.
1. Amend section 274B(a)(1) to prohibit discrimination in the terms and conditions of employment so that it covers unlawful conduct during the employment relationship.
2. Amend the definition of “protected individual” in section 274B(a)(3) to allow all workers to file a citizenship or national origin discrimination claim, and remove the requirement that lawful permanent residents (LPRs) must prove they intend to become citizens to be protected from discrimination so that long-term LPRs are covered.
3. Amend section 274B(d) to extend the time that the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has in which to file a complaint with an administrative law judge based on an independent investigation from 180 days after the unfair immigration-related labor practice to 2 years.
4. Amend section 274B(g)(2)(B) so that back pay is available as a remedy for an unfair immigration-related employment practice and to give administrative law judges the discretion to award any other remedies, such as punitive damages, they believe are appropriate based on the facts of the case.
5. Amend section 274B(a)(6) by restoring a former provision of the INA, which did not require workers to prove that the employer “intended” to discriminate against them.
6. Increase fines in section 274B(g)(2) for employers who are found to violate the law.
C. Ensure that all workers have the right to organize and bargain collectively
Workers, and in particular, immigrant workers, are routinely harassed, coerced and often fired when they attempt to organize unions. Employers routinely launch campaigns of fear and intimidation when workers attempt to exercise their right to organize under the National Labor Relations Act. Immigrant workers are particularly vulnerable to intimidation and coercion because employers use workers’ immigration status as a tool to defeat organizing, threatening raids and deportation. Even when workers successfully form a union, they often can’t get a contract.
We support the Employee Free Choice Act, which will restore workers’ freedom to form unions by (1) strengthening penalties for companies that coerce or intimidate employees, (2) establishing mediation and binding arbitration when the employer and workers cannot agree on a first contract and (3) enabling employees to form unions when a majority express their decision to join the union by signing authorization cards, a process also known as “card check.”
D. Ensure that Immigration Enforcement Complements Rather Than Undermines the Enforcement of Labor and Employment Laws
The threat that their employer will use their immigration status against them is one of the most significant barriers facing workers who seek to assert their labor rights. Current law deters immigrant workers from reporting unfair immigration-related employment practices because it does not penalize employers for reporting workers to the immigration authorities in retaliation for the workers’ endeavoring to improve their working conditions. The following provisions would make it harder for unscrupulous employers to abuse our immigration laws by using the Department of Homeland Security (DHS) to inhibit union organizing or retaliate against workers who file labor complaints.
1. Amend INA section 237(a) to clarify that, in the event of an administrative or legal proceeding, neither back pay nor any other monetary damages shall be denied as a result of the complainant or plaintiff's immigration status.
2. Amend INA section 274A to provide rules of conduct for worksite raids during a labor dispute by codifying the DHS’s current policy that requires U.S. Immigration and Customs Enforcement (ICE) officials to follow certain procedures when investigating workplaces that have labor disputes.
3. Amend INA section 274A(e) to ensure that immigration enforcement does not undermine laws and policies intended to protect the safety of the community, by prohibiting ICE agents from masquerading as personnel from an agency or organization that provides domestic violence services, enforces health and safety law or other labor laws, provides health care services, or any other services intended to protect life and safety.
4. Amend INA section 274A(e) to require that when ICE conducts an I-9 audit or engages in other worksite enforcement actions, any labor violations discovered are reported to the appropriate government labor or employment rights agency and that detained workers are not removed from the country until after that agency has had the opportunity to interview them to determine whether it would be appropriate to begin legal proceedings against the violating employer.
5. Amend INA section 101(a)(15)(U)(i) to grant temporary visas and work authorization to immigrant workers who are detained in the course of a labor dispute because their employer has retaliated against them. Creating such a temporary visa will ensure that workers can (1) provide information to the government as it investigates employers that violate the law and also (2) seek redress for the labor violation.
6. In order to prevent government agencies from taking any action that would compromise their mission of enforcing the fundamental protections in labor, employment, and antidiscrimination laws, require the U.S. Department of Labor (DOL) and all its subagencies, the National Labor Relations Board, and the Equal Opportunity Employment Commission to keep confidential any information about workers’ immigration status discovered in the course of their investigations.
E. Review international trade agreements that contribute to undocumented migration
In order to alleviate future labor migration and involuntary displacements, trade agreements such as NAFTA, which are a significant cause of undocumented migration to the U.S., must be reinterpreted or renegotiated to reduce rather than increase the underlying causes of undocumented migration.
F. Prohibit States from considering immigration status in determining worker benefits
Federal legislation should prohibit states from enacting local employer sanctions laws or considering immigration status in determining workers compensation, disability and unemployment benefits. In all other respects, states will continue to regulate in this area.
G. Increase budgets for the Wage and Hour Division of the Department of Labor and the Occupational Safety and Health Administration
In order to further protect U.S. workers, the budgets for the Wage and Hour Division of the Department of Labor and the Occupational Safety and Health Administration should be substantially increased, including funding special programs for labor law enforcement in industries in which immigrants are concentrated.
H. Extend free legal services assistance to all immigrant workers
Enact legislation to extend the delivery of free legal services available through Legal Services Corporation funding to provide access to legal services to all low income workers, regardless of immigration status. Section 504(a)(11) of Public Law 104-134 (110 Stat. 1321-53 et seq.) shall not be construed to prevent a recipient of funds under the Legal Services Corporation Act (42 U.S.C. 2996 et seq.) from providing legal assistance to low-income workers in matters relating to labor law violations regardless of the worker’s immigration status.