The Ninth Circuit Court of Appeals recently decided Arias v. Raimondo, a very important case seriously affecting the ability of immigrants to use the federal courts to enforce employment laws. When an employee complained of employer practices and sought to work elsewhere, the employer threatened to turn the employee over to ICE if he took other work. Then, when the worker sued, the employer’s attorney arranged
with ICE for the worker to be picked up when he appeared for his deposition. The employee sued the employer’s attorney, individually, for retaliation under the Fair Labor Standards Act. The employer’s attorney defended on the grounds that he had never employed the worker, and therefore was not subject to suit for retaliation under the FLSA. The 9th Circuit disagreed, finding that the attorney could be held responsible and sending a warning shot across the bow of any defense attorney inclined to deny workers a remedy for unpaid wages by exploiting the worker’s immigration status.
If we cannot keep the courts open to claims by unauthorized workers that their rights are being violated, all workers will lose basic protections since the floor under all workers would be eroded. Congratulations to the Ninth Circuit for a great decision.
Fernando and Nestor* worked as crew leaders for a moving company for several years. Over time they developed concerns about some of the company’s practices. First, they noticed that Latino workers seemed to be regularly scheduled for the less desirable and lower paying late night, residential jobs, instead of the higher paying government contract jobs. Then, they noticed Latino workers were more likely to be punished for small mistakes.
As the political climate deteriorated nationwide, the treatment got worse – a supervisor began discussing his support for Donald Trump at length, focusing on how he hoped that if Trump won, he would get rid of all the Mexicans. Their workplace became increasingly hostile as other non-Latino workers began refusing to work with Latinos, and this eventually escalated to insults and threats directed at some of the Latino workers.
Fernando and Nestor spoke up on behalf of themselves and expressed concerns about others’ safety. They spoke to management, demanding a workplace free from harassment and threats. Shortly after, they were fired.
Sadly, in this new and alarming political climate, NWJP is seeing more and more workers like Nestor and Fernando, who are facing discrimination in public and in the workplace. In fact, since the election, Oregon has led the nation in racially motivated harassment. NWJP remains engaged in the fight to prevent workplace harassment and strive for worker justice. This mission is ever more vital. Whether in the courts or in front of the legislature fighting for worker protections, we remain committed to making sure workers like Fernando and Nestor are able to seek and obtain the justice they deserve.
NWJP coordinates the Low Wage Worker Legal Network (LWWLN), which brings together low-wage worker advocates from legal organizations across the country to collaborate on how to better protect low-wage immigrant and temporary workers in the U.S. Since it was formed in 2004, the Network has grown to include 449 legal advocates in 34 states, the District of Columbia and Mexico. Two primary goals of the LWWLN are to facilitate joint training resources and to spark coordinated litigation and policy advocacy on low wage workers’ rights through organizing working groups of interested advocates.
In response to the Trump Administration’s new immigration priorities, the Network has launched a working group directed at focusing primarily employment-oriented programs on responding to the crisis of enhanced immigration enforcement in our communities. This includes readying resources to protect immigrant worker clients, collaborating nationally to share expertise in educating on and defending immigrant rights, and cooperating with immigrant rights organizations to provide employment law experience. Still in the beginning phases of coordination, LWWLN’s immigration working group pools national resources with the hopes of providing a strong, competent response to threats that immigrants in our communities face.
If you are interested in becoming a member of LWWLN or its immigration working group, please contact Corinna Spencer-Scheurich at email@example.com.
As an attorney who has been representing immigrant workers for many decades, I am deeply distressed about recent news reports that ICE agents are stalking immigrants in and around our courts. These reports have sent a palpable chill through Oregon’s immigrant communities. This news should be equally chilling to lawyers, court workers, and anyone else who cares about due process and the rule of law.
To begin with, if a person is summoned to appear in court, but his or her compliance will result in deportation, it is predictable that many will not comply. This will inevitably lead to the breakdown of orderly criminal justice, probation, juvenile and domestic relations systems.
But even more importantly, our sacred commitment to due process of law is severely compromised if disputes cannot be fairly adjudicated because some of the parties do not feel safe in our courtrooms. As a worker advocate, I fear that marginalized workers, who already have so much to fear in making a complaint that their rights are being violated, may now be too intimidated to come forward to assert claims that could require them to appear in person in a court of law. And will the witnesses they need to support those claims respond to a subpoena to court? Will overzealous opponents attempt to exploit these fears? If the most vulnerable cannot defend their rights as workers, all will suffer.
NWJP is committed to finding ways to keep our justice system open to even the most vulnerable litigants. We call on allies to join us.
The American system of jurisprudence is a core part of who we are as a society. That it may not be safe to engage in that process attacks this very foundation. It also violates the international law of nations. This road leads to chaos and lawlessness.
We’ve got to push back, or we will lose who we are.
Michael Dale Founder, Executive Director, and Senior Attorney, NWJP
NWJP’s mission has always included supporting and defending immigrant workers. Recent national and local events have made this work even more important. NWJP currently represent a number of workers whose coworkers, emboldened by the rise of anti-immigrant rhetoric, have targeted them.
In Portland, two of our clients, from Mexico and Guatemala, were crew leads for a moving company when a new worker started making racist remarks about Latinos, including that he hoped that Trump would become president and remove all of the Hispanics from the country, and tried to pick a fight with some of the Latino workers. Our clients complained to the supervisors because they felt like they had to protect themselves and other Latino workers from abuse by this worker. Both crew leads were fired.
A Latino worker at a major national retailor in Hood River was confronted by a white coworker who threatened him with a knife while calling him racist slurs. After he asked for protection from his supervisors, he was fired.
And, another Latino worker in the Eugene area endured a year and a half of racist remarks and escalating, destructive pranks focused on the few Latino workers. He reported the conduct to his supervisors, but nothing changed. Things came to a head when a coworker hit our client in the back with a pole. While he was out on leave for his injured back, he was fired.
We know that these cases are just a small sampling of the racial discrimination that immigrant workers face in Oregon and across the country. But Oregon leads the nation in reported incidents of race-based harassment since the election. Our work, therefore, includes not only representing individual workers, but also pressing for legislation that will better protect workers. In 2017, we will push for a bill in Oregon that gives workers who are fired for retaliation, like the workers mentioned above, additional tools to more easily prove that their protected complaints were the reasons for their firing. And, we are working with other community groups to strengthen our networks to confront new threats that immigrant workers might face in the coming year.