By: Beth Rosner
- Magdalena Barbosa, Supervising Attorney, Make the Road New York
- Eunice Chang, Staff Attorney, Workers’ Rights Legal Clinic, MinKwon Center for Community Action
- James Rogers, Deputy Commissioner, NYS Department of Labor
- Catalina Rosales, Counsel to the Division of Immigrant Policies and Affairs, NYS Department of Labor
- Veronica Cruz, Director, Division of Community Services, New York State Department of State
This symposium session began with an introduction from Veronica Cruz, who is the Director of the Division of Community Services at the New York State Department of State. Ms. Cruz provided context for the discussion by highlighting the importance of immigrant workers to the national and local economy and the various rights and protections for immigrant workers.
The panel was comprised of four speakers. The first half of the session concerned the legal rights of undocumented workers. The second half of the session dealt with the protections and processes that take place once a worker files a complaint for violation of those rights.
Eunice Chang, Workers’ Rights Legal Clinic
The first panelist was Eunice Chang. Ms. Chang works as a Staff Attorney in the Workers’ Rights Legal Clinic at the MinKwon Center for Community Action. The organization provides various services to the Korean and Chinese American communities and others in Flushing, Queens. Ms. Chang explained the various laws that protect immigrant workers by providing an example of a typical client interaction in which an undocumented worker expresses concerns about workplace safety and fair payment.
Ms. Chang described how undocumented workers are entitled to work in a safe environment, to know about hazardous chemicals they work with, and to report their employer to the Occupational Safety and Health Administration if the employer fails to comply with the law by not providing workplace safety. In addition, the antidiscrimination laws in New York City protect undocumented workers. In New York City, the City Human Rights Law generally provides that any worker who works for an employer with four or more employees has the right to be free from discrimination based on his or her alienage or citizenship, among other categories. However, an undocumented worker does not have the right to be free from discrimination based on alienage or citizenship under federal antidiscrimination statutes, although discrimination based on race, gender, national origin and other categories is prohibited under state and federal law.
In regards to unemployment insurance, Ms. Chang explained that undocumented workers are not entitled to receive these benefits. However, a worker with a Green Card, or a worker who is an asylee would be entitled to receive unemployment insurance.
Another challenge for some immigrant workers seeking unemployment insurance is the need for an accurate record of wages paid. Community groups and attorneys can help workers compile a record of cash payments by using the envelopes that cash payments were received in, bank statements from cash deposits that occur weekly, or an employee’s memo of a date of payment on a personal calendar.
Lastly, state agencies must provide translation services to undocumented workers. Undocumented workers are legally entitled to have critical state agency documents translated into the top 6 languages which are: Spanish, Russian, Chinese, Korean, Haitian-Creole, and Italian.
Magdalena Barbosa, Make the Road New York
The second panelist was Magdalena Barbosa. Ms. Barbosa works for Make the Road New York. Make The Road New York counsels low-income immigrant workers about their rights on the job in regards to minimum wage, compensation for hours worked, and non-payment of wages. Ms. Barbosa discussed legal rights surrounding these issues.
Firstly, Ms. Barbosa explained that undocumented workers have the right to be paid the minimum wage. As of December 31, 2013 the minimum wage is $8. The minimum wage must be paid for most jobs regardless of how a worker earns his or her money (including workers who earn income from tips). However, many workers are not aware of whether they are being paid the minimum wage. Ms. Barbosa provided a formula that can be used to calculate whether a worker is being paid the minimum wage. Undocumented workers should divide the total amount earned per week by the number of hours worked. In addition, generally workers who work over forty hours a week are entitled to overtime which must consist of time and a half of the hourly rate.
Lastly, Ms. Barbosa noted that employers are not entitled to keep a worker’s wages for items broken or poor performance. However, an employer is entitled to deduct wages for taxes, union dues, or retirement plans. Suit can be brought for unpaid wages within the Statute of Limitations, which in New York is 6 years. Under New York law a suit brought against an employer who retaliates against an employee for enforcing labor law rights may result in the worker obtaining lost compensation, attorney fees and as much as ten thousand dollars in cash.
James Rogers, NYS Department of Labor
The last two panelists discussed the process that occurs once a worker reports a violation of his or her rights to the Department of Labor.
James Rogers, who works as the Deputy Commissioner for the Department of Labor (DOL), described the DOL’s two main goals in protecting undocumented workers. The first goal is getting what the DOL considers to be stolen money back to the worker. The second goal is deterrence, which involves the penalties employers can face for violating workers’ rights and employment laws, including criminal penalties in some cases. Mr. Rogers detailed the process that occurs once a complaint is made to the DOL. He specifically noted that an undocumented worker has the right to make a complaint, which will be fully investigated and may result in the employer returning lost wages, interest, liquidated damages and penalties.
Catalina Rosales, NYS Department of Labor, Division of Immigrant Policies and Affairs
Ms. Rosales and her team work to ensure that workers’ rights are protected. She provides “Know Your Rights” presentations throughout the city and works with community organizations and elected officials to educate the public about labor laws. In addition, they can also provide assistance to undocumented workers who report their employers to the Department of Labor and who are in turn threatened with deportation.
Ms. Rosales explained that undocumented workers are often threatened and coerced when they attempt to force their employers to pay them for wages due. In any instance in which an employer threatens an undocumented worker with deportation for enforcing his or her rights, the DOL can assist that worker in applying for a U visa, which is available for undocumented workers who are victims of certain crimes. Any certification for a U visa signed by the DOL can help to neutralize any threats of deportation that an undocumented worker may face.