Immigrants & Visa Holders: Your Employment Rights

In 2012, the New York-based company Suffolk Laundry Services was sued after a manager allegedly subjected Latina immigrant workers to verbal and physical sexual harassment. In 2009, B&H Photo & Electronics Corp. faced allegations that the company had paid Hispanic warehouse workers less than non-Hispanic workers, failed to promote them, and failed to provide them health benefits. And in 2006, a suit filed against Porpiglia Farms, Inc. claimed that the New York orchard had discriminated against Jamaican migrant workers and falsified their worker’s visas.

Each of these lawsuits took place in New York State. Each were handled at the federal level by the Equal Employment Opportunity Commission (EEOC). And each involved victims who were immigrant workers, visa holders, or both.

As New York City-based employment attorneys, we at the Working Solutions Law Firm handle dozens of lawsuits involving discrimination and wage and hour violations every year. In our collective experience, it’s an unfortunate reality that unscrupulous employers prey on employees who are the most vulnerable—who often have the most to lose. Increasingly, employment law firms across the nation are finding that working immigrants and visa holders suffer this reality every day as the disproportionate victims of workplace harassment, discrimination, and illegal wage practices.

In the United States, visa holders, and especially undocumented immigrant workers, are beholden to their employers in ways that most other classes of employees are not. Employers may take advantage of or cheat workers who cannot easily seek recourse—and particularly for employees who fear legal consequences including deportation, that recourse is often never pursued at all. The high level of control that most employers hold over their immigrant workers, combined with employers’ assumption of immunity from consequences, creates the perfect storm for employee rights violations like the ones described above.

In some immigrants’ cases, such stories have happy endings: Suffolk Laundry Services settled its lawsuit last year for nearly $600,000; B&H Photo & Electronics Corp. eventually paid out $4.3 million. Injunctive relief in both cases also included the institution of new workplace policies and trainings to prevent the reoccurrence of these employee rights violations. But the results of these trainings are not guaranteed—as of February 2016, B&H Photo has found itself embroiled in yet another discrimination suit alleging further systematic discrimination against Hispanic employees. Even more worrisome than these cases, though, are those that never come to light at all.

Below you’ll find a breakdown of common employment law violations involving immigrant workers and visa holders. If any of these situations apply to you or to someone you know, you may have grounds for legal recourse. Our firm will gladly offer you a free consultation—simply call us at (646) 430-7930 or visit our contact page here.

WORKING VISA HOLDERS

The federal government offers various types of temporary worker visas to non-U.S. citizens who seek to legally work in the United States for a period of time. Among the most commonly-utilized is the H-2 visa program, which grants employment rights to seasonal agricultural workers (H-2A visa) or temporary non-agricultural workers (H-2B visa). Immigrants in both subcategories are typically hired to supplement companies’ permanent staff during times of seasonal or short-term demand, and may work in the U.S. for up to three years at a time.

Unfortunately, while the H-2 visa program provides non-citizen immigrants with an opportunity to legally reside and earn income in the United States, certain conditions of the H-2 program may also disadvantage visa holders and place them in a position where they are vulnerable to employee rights violations. H-2 visas are predicated on the sponsorship of a U.S.-based employer, meaning that immigrants’ employers ultimately have control over their visa—as well as their employment situation and even their living situation. Abuses of power are all too common, whether in the form of wage and hour issues, discrimination, or harassment.

WAGE & HOUR ISSUES

On paper, H-2 visa holders enjoy many of the same employee protections that U.S. workers have: they must be paid time-and-a-half as overtime for work in excess of 40 hours weekly; they cannot be discriminated against or paid disparately because of their sex, race, national origin, or other protected characteristics; and they have the right to join a union. H-2 workers are also granted some additional rights specific to visa holders—for example, they must be paid their industry’s prevailing wage as mandated by the Department of Labor (DOL), and they must be employed full-time, typically being paid for no fewer than 30 hours per week.

Despite these regulations, we know that many H-2 workers are routinely underpaid, forced to complete unpaid overtime work, and/or are charged for expenses that are the company’s own responsibility. Underpayment, or lack of payment, is one of the more easily recognized workplace violations—though the matter of reporting it can still be a complicated one, as we’ll discuss below. In fact, there are numerous other examples of wage and hour violations that might not be so obvious. Here’s what visa holders should know.

• During the H-2 visa process, employers must apply for a labor certification that permits their company to bring temporary workers into the United States. Employers are required to pay all fees associated with the labor certification process. It is illegal to solicit “recruitment fees” from immigrant workers, or to force workers to pay for the company’s labor certification application.

• Employers of H-2 workers are prohibited from deducting the cost of safety equipment from workers’ pay, and they must comply with all of the usual health and safety regulations of their industry. Additionally, if workers are injured on the job, they may have some recourse. A report compiled by ImmigrationWorks USA states that in most cases, H-2B employees who are injured at work must receive free medical treatment and partial restitution for wages lost while the employee is incapacitated.

• Employers are required to reimburse H-2 visa holders for the cost of traveling from their home country to their place of employment, including fees incurred for transportation and subsistence (i.e. lodging and meals), provided that such expenses are reasonable. Usually this reimbursement is issued upon completion of 50% of the designated work period. At the conclusion of the work period, the employer is also responsible for H-2 visa holders’ return transportation to their home country, and associated fees.

• Under certain circumstances, an H-2 worker may be dismissed from their job before the end of their authorized work period. If early dismissal occurs, the employer is still required to pay for the worker’s return transportation to his or her country of origin.

• Employers are required to provide no-cost housing to H-2A visa holders for the duration of their work period, and to provide free daily transportation to and from the work site. They must also provide each worker with either three meals per day, or furnish “free and convenient cooking and kitchen facilities” where workers can cook meals for themselves. It is illegal to make paycheck deductions for these amenities. Additionally, employer-sponsored housing and transportation must meet all applicable safety standards. H-2B workers are not guaranteed housing or meals, but employers are still required to meet safety standards and to ensure that any fees levied on workers for living expenses are “reasonable.”

• Within their first workweek, workers on an H-2B visa must be reimbursed for all expenses related to the visa application process and border crossing, including visa fees, biometrics fees, and any other fees associated with procuring work authorization. 

• Employers must issue payment to working H-2 visa holders at least every two weeks, or more frequently. They must inform workers of any paycheck deductions in writing, and must also provide an itemized statement of earnings for each pay period. Employers who fail to issue pay stubs may be concealing illegal pay deductions.

• Even if there is a shortage of work, H-2 workers must be guaranteed employment—or payment—for at least three-fourths (75%) of the hours promised to them in the job order every twelve-week period (or every six-week period if the job order is under 120 days).

• More detailed information about employer obligations is available through the DOL’s Wage and Hour Division website. You can find facts about the H-2A program here, and about the H-2B program here.

 DISCRIMINATION & HARASSMENT

It is widely recognized that the conditions of the H-2 visa create ripe opportunities for immigrant worker abuse—and unfortunately, that abuse is not limited to wage and hour violations. Employers have been known to verbally and physically abuse workers, harass them, intimidate them, sexually assault them, and even steal their documentation, knowing that the workers won’t dare report them.

Because H-2 visa holders must remain affiliated with their sponsoring employer in order to legally reside in the United States, a complaint against the employer could have disastrous consequences for the employee, including deportation or blacklisting. For workers who depend on temporary U.S. employment to support themselves and their families, risking such consequences is simply not an option. Employers recognize this and take advantage of visa holders’ vulnerability. Companies can exercise a significant degree of control over workers’ behavior in this way, prompting some to refer to the H-2 programs and similar guestworker programs as “close to slavery.”

Some common examples of worker harassment and exploitation are below.

• Confiscation of documents

Employers may take away immigrant workers’ identification documents upon arrival—their visas, passports, or Social Security cards. These employers may claim that they are holding the documents for “safekeeping,” but their true purpose is to retain control over their workers by denying them proof of their legal U.S. presence. According to the Southern Poverty Law Center (SPLC), a nonprofit civil rights organization, employers may even destroy documentation to hold workers against their will and intimidate them into accepting poor pay and working conditions without complaint.

• Threats of violence and intimidation

Employers have been known to threaten deportation—but sometimes, if fear of deportation isn’t enough, employers force workers to fear for their lives. H-2 workers might have guns pointed at them or endure threats of violent physical beatings if they don’t work “hard enough.” Employers may use such threats to dis-incentivize workers from complaining about wage or safety violations, or to keep them from reporting injuries.

• Sexual harassment and assault

Women workers in particular may be told that they will be raped or even killed if they do not behave as their employer demands. Too often, employers follow through on threats of sexual assault, though they might claim that these interactions were consensual or were “an accident.” Harassment can also take a more insidious form when small but repeated transgressions, such as sexually charged comments, culminate in a hostile work environment. This Buzzfeed News report offers an in-depth look at some of the exploitative situations H-2 visa holders endure.

UNDOCUMENTED IMMIGRANT WORKERS

If employee rights violations are prevalent under the H-2 visa program, they’re even more so when workers don’t hold any type of protected legal status. Undocumented workers can be subjected to any of the violations that visa holders endure—perhaps to an even greater degree. While undocumented workers might have more freedom to leave an abusive employer than H-2 visa holders do, underpayment is still extremely common, as are unsafe working conditions. And yet, as with visa holders, most undocumented immigrants avoid filing complaints for fear of retaliation and deportation.

One might assume that undocumented workers have less legal recourse than visa holders do—but this is not necessarily the case, particularly for wage and hour violations. In fact, undocumented workers are generally protected by federal, state, and local employment laws, and the New York Labor Law is no exception. Multiple federal courts and New York State courts have held that “illegal” immigrants can bring legal action to recover unpaid wages. Under the federal Fair Labor Standards Act (FLSA), every employee in the U.S. is entitled to certain wage standards and can make a claim if those standards are not met. Workers’ legal status doesn’t matter—in one federal district court case, Angamarca v. Da Ciro, Inc., the undocumented plaintiff was even able to pursue his lawsuit from abroad after he had already returned to his home country.

In short, undocumented workers are owed proper minimum wages and overtime for all hours worked in the United States, even if they lack employment authorization. Undocumented immigrants are also protected by the same employment laws that prevent workplace harassment and discrimination, though there are certain limitations on the remedies they can claim. Our firm is happy to discuss these situations on a case-by-case basis—simply give us a call.

Regardless of immigration status, you and every other U.S. worker deserve fair treatment as an employee. If you believe that you or someone you know may be the victim of a workplace rights violation as described in this post, call us today for a free consultation at (646) 430-7930, or fill out our contact form here. Whether it’s discrimination, a wage and hour violation, or an incident of harassment, our firm is here to help you assert your rights and secure the recourse that you’re owed.