Mallory Perazzo, Associate Member, University of Cincinnati College of Law
It has long been illegal for employers to retaliate against undocumented workers that bring labor disputes by threatening to report their immigration status to Immigration and Customs Enforcement (“ICE”). Nevertheless, there are countless stories of just that. Several of the country’s primary labor agencies have created policies that aim to protect workers that bring labor violations, creating a safer and fairer workplace, but it is often ineffective for several reasons. First, it is heavily dependent on the political climate, as the administration has broad authority to grant exceptions to the general rules. Second, employers rarely face consequences for violations, in part because immigrants are often in too vulnerable of a position to bring lawsuits or may have already been deported.
During the Trump administration, workplace raids were rampant, and employees reported increased levels of employer retaliatory behavior, including threats of calling ICE. In 2021, the Biden administration announced that the Department of Homeland Security (“DHS”) would halt workplace raids entirely.
Part II of this article discusses the various authorities that prohibit workplace retaliation against immigrants based on alien status. Part III explains the shortcomings of the current laws but applauds the new administration for taking the step to prevent one common form of employment discrimination.
Several authorities signal employers that they may not retaliate against their workers by threatening immigration enforcement. The National Labor Relations Act (“NLRA”) prohibits employers from using immigration status against their employees. For example, the National Labor Relations Board (“NLRB”) states that employers cannot threaten to call ICE because workers express interest in joining a union. The major labor agencies as well as the DHS and ICE have also agreed and documented in a Memorandum of Understanding (“MOU”) that immigration enforcement should not take place in the workplace as a result of labor disputes. Among other things, ICE agreed not to frustrate the enforcement of labor laws and thwart attempts by other parties to manipulate its worksite enforcement activities for illicit or improper purposes. For example, the MOU could be triggered by an employer’s attempt to retaliate against workers for exercising their workplace rights through a surrogate, such as a lawyer or a police officer. Likewise, in an effort to prevent workplace retaliation against immigrants, in 2021, Homeland Security Secretary Alejandro Mayorkas banned the DHS from conducting mass workplace raids.
There are various remedies for victims, as well as legal consequences for violators of these laws. Per the MOU, ICE agrees to consider requests to grant immigration relief for witnesses needed for a labor agency investigation. Labor agencies and ICE also retain the ability to seek visas for labor agency witnesses, such as victims of crimes for U-visas. In addition, a worker might choose to file a private suit against her employer for retaliating against her by calling ICE, which may be a violation of the Fair Labor Standards Act (“FLSA”). Finally, victims of labor abuse may be eligible for the exercise of prosecutorial discretion.
Notwithstanding several sources of law prohibiting it, it is easy to find stories where immigrants have been threatened and deported based on workplace retaliation. In 2005, a hotel owner called ICE to investigate twenty-one employees after the employees requested a living wage and other government-defined rights. In 2008, immigrants complained of dangerous working conditions following Hurricane Ike and were met with an ICE agent that arrested twelve laborers. Nearly one hundred immigration-related retaliation claims were filed in California in 2018, each of them detailing employers threatening to report workers to ICE. ICE has also been known to survey picket lines and other labor activities. These stories are not unique. Stories of employers receiving consequences for the same activity, however, is less common.
The goal of prohibiting retaliation is to create safer workplaces and to punish employers that exploit workers, rather than to punish immigrants for asserting workplace rights. Unfortunately, largely unenforced laws provide little protection. Remedies exist for violations of the MOU or NLRA, but they generally fall short. One reason that they are inadequate is that they vary heavily depending on the presidential administration. Another reason is that the laws do little to protect immigrants from deportation. With the threat of deportation, immigrants are left vulnerable and therefore unequipped to speak against working conditions, unionize, and otherwise raise labor disputes.
The MOU between the DHA and the labor agencies is cited as protecting workers, but it is not without shortcomings. The MOU is an interagency agreement but is not binding or enforceable. Therefore, changing administrations have the freedom to ignore or amend the terms of the agreement. The MOU also permits ICE to pursue a worksite enforcement action under certain circumstances, including when ICE leadership determines that enforcement is necessary due to national security concerns. Furthermore, it grants the Secretary of the DHS broad authority to permit enforcement. Unsurprisingly, this leads to different administrations creating more liberal or conservative standards for exceptions.
Even the binding NLRA fails to meet its expectations, in part because immigrants continue to face deportation regardless of a violation. The Board of Immigration Appeals has held that, although evidence was obtained through a raid initiated on a tip from the petitioner’s employer in furtherance of the employer’s unfair labor practices, the evidence of the petitioner’s alien status was properly admitted. That application effectively renders the prohibition of retaliation in the NLRA useless for an undocumented immigrant that fears deportation. Therefore, immigrants are significantly less likely to assert their so-called rights.
The Biden administration’s controversial ban on workplace raids is a powerful step to diminish illegal discrimination. The Trump administration increased the number of workplace raids, arguing it sent the message to stop illegal immigration and to discourage employers from hiring undocumented immigrants. The problem with this approach is that it allows employers to exploit workers without the fear of whistleblowing because workers are incapable or unwilling to demand their rights. This negatively impacts all workers, including U.S. citizens, and it encourages unscrupulous employers to hire immigrants. The new administration’s policy shifts the focus away from immigrant workers asserting their rights and instead calls for enforcement agencies to focus on employers that are intentionally exploiting vulnerable workers. The newly formed plan promises to provide overt protection for workers that report abusive workplaces.
It is hardly surprising that many immigrants are fearful to assert their workplace rights considering doing so has led to the deportation of many. United States citizens as well as immigrant workers suffer when whistleblowers and union organizers are silenced. The persisting practice of retaliating against immigrants in the workplace is highly problematic and worth preventing. Unfortunately, the laws that have been in place for many years to prohibit this behavior are largely ineffective. A more operative provision is Biden’s ban on workplace raids. Nevertheless, the objective to end employer retaliation against immigrants is still a long way off.
 Immigrant Employee Rights Under the National Labor Relations Act, Nat’l Lab. Relations Bd., https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3024/immigrant_employee_rights_one_pager_english_pdf_21860.pdf.
 Andrew Khouri, More Workers Say Their Bosses Are Threatening to Have Them Deported, L.A. Times (Jan. 2, 2018), https://www.latimes.com/business/la-fi-immigration-retaliation-20180102-story.html. See also Rebecca Smith, ICED OUT: How Immigration Enforcement Has Interfered with Workers’ Rights, Nat’t Emp. L. Project (2009), https://s27147.pcdn.co/wp-content/uploads/2015/03/ICED_OUT.pdf.
 Elie Peltz, Giving Voice to the Silenced: The POWER Act as a Legislative Remedy to the Fears Facing Undocumented Employees Exercising Their Workplace Rights, 54 Colum. J.L. & Soc. Probs. 503 (2021).
 The Biden Administration Announced the DHS Will Halt Workplace Raids, NPR (Oct. 17, 2021), https://www.npr.org/2021/10/17/1046850241/the-biden-administration-announced-the-dhs-will-halt-workplace-raids.
 Immigrant Employee Rights Under the National Labor Relations Act, supra note 1.
 “Major labor agencies” refers to the DHS, the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB”).
 Revised Memorandum of Understanding Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, DHS & DOL (Dec. 7, 2011), https://www.dol.gov/sites/dolgov/files/OASP/DHS-DOL-MOU_4.19.18.pdf [hereinafter Revised Memorandum].
 Bill Chappell, Homeland Security Secretary Orders ICE to Stop Mass Raids on Immigrants’ Workplaces, NPR (Oct. 12, 2021), https://www.npr.org/2021/10/12/1045295677/alejandro-mayorkas-ice-workplace-raids-dhs.
 Revised Memorandum, supra note 8.
 See Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017) (holding an employee’s allegations state a claim against employer under the FLSA anti-retaliation provision when employer called ICE on employee for filing suit against employer). See also Contreras v. Corinthian Vigor Ins. Co., 25 F.Supp.2d 1053 (N.D. Cal. 1998) (demonstrating that employer’s threats to turn workers into immigration authorities violate the anti-retaliation provision of the FLSA).
 Prosecutorial Discretion & Immigrant Workers Recommendations for Implementation, Nat. Immigration Law Ctr. (2012), https://www.nilc.org/issues/immigration-enforcement/pdimmworkers/.
 Smith, supra note 2, at 16.
 Id. at 18.
 Khouri, supra note 2.
 Smith, supra note 2, at 21.
 Peltz, supra note 3.
 Id. at 523.
 Montero v. INS, 124 F.3d 381 (2d Cir. 1997) (reaffirming the BIA’s decision).
 Eileen Sullivan, Biden Ends Workplace Immigration Raids, Reversing Trump’s Policy, N.Y. Times (Oct. 12, 2021), https://www.nytimes.com/2021/10/12/us/politics/biden-workplace-immigration-raids.html.
 Jasmine Aguilera, In ‘Transformational’ Immigration Shift, Biden Administration Wants to Target Employers, Not Undocumented Workers, Time (Oct. 13, 2021), https://time.com/6106554/biden-immigration-ice-workplace-raids/.