BILL NUMBER: S5791

SPONSOR: RAMOS
 
TITLE OF BILL:  An act to amend the labor law, in relation to penal-
ties for discrimination or retaliation against immigrant employees

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends paragraph (a) of subdivision 1 of section
215 of the Labor Law by adding a new undesignated paragraph clarifying
that "to threaten, penalize, or in any other manner discriminate or
retaliate against any employee" includes contacting or threatening to
contact United States immigration authorities or otherwise reporting or
threatening to report the suspected citizenship or immigration status of
an employee or an employee's family or household member to a federal,
state or local agency.

Section 2 of the bill is the effective date.

 
JUSTIFICATION:

              

Immigrants have long faced' disproportionate levels of exploitation and
abuse in the workplace. For years, studies have consistently shown that
immigrants are more likely to be victims of wage theft, sexual harass-
ment, misclassification and workplace safety violations than American-
born citizens. In recent years with the dramatic escalation in the scope
and severity of immigration enforcement, this disparity has become worse
than ever, and predatory employers are newly emboldened to exploit the
culture of fear the federal government has created. Worse yet, there are
increasing reports that vulnerable immigrant workers are being threat-
ened with deportation consequences in order to prevent their reporting
unlawful or dangerous working conditions.

This law seeks to amend the Labor Law to address these threats. Under
current New York State Labor Law, it is a class B misdemeanor for an
employer to discharge, threaten, penalize, or in any other manner
discriminate or retaliate against any employee because: the employee has
filed a complaint that his or her employer has violated the Labor Law;
the employer believes that the employee has filed such a complaint; the
employee has instituted or is about to institute a proceeding under the
Labor Law; the employee has provided in formation to the Department of
Labor or the Office of the Attorney General; the employee has testified
or is about to testify in an investigation or proceeding under the Labor
Law; the employee has otherwise exercised his or her rights under the
Labor Law; or the employer has received an adverse determination from
the Department of Labor involving the employee.

The Office of the Attorney General (0AG), which proposed this legis-
lation, has investigated cases and received reliable reports from worker
organizations, employment lawyers, and advocacy groups of employers
threatening to report immigrant workers or workers' family members to
immigration officials in order to discourage employees from exercising
rights protected under the Labor Law. In a recent investigation under-
taken by the OAG, an employer refused to pay employees for weeks of
work, and threatened to report the employees to immigration authorities
when they requested the pay they were owed.  In another case litigated
and favorably resolved by the OAG, an employer retaliated against work-
ers for refusing to sign a document, in which they would have waived

their rights as .employees, by telling them that the employer planned to
meet with a U.S. Marshal who would deport them.

These types of threats have become increasingly common and deter workers
and not just those directly threatened - from reporting violations or
cooperating with labor law investigations. This harms the workers, law
enforcement agencies like OAG, and employers who follow the law by
allowing unscrupulous employers to exploit workers without penalty.

This legislation would codify federal case law interpreting the anti-re-
taliation provisions of New York's Labor Law and the federal Fair Labor
Standards Act (FLSA) as prohibiting threats to contact immigration
authorities about an employee or an employee's family member. Multiple
courts within the Second Circuit have held that threats to contact immi-
gration authorities are sufficient to "dissuade a reasonable employee"
from making complaints or participating in investigations or litigation
against their employer, and thus violative of New York Labor Law and the
FLSA. 
1

Citations:

 
1 See Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 136 (W.D.N.Y.
Dec. 18, 2003) (finding that plaintiffs established a prima facie case
of retaliation under the FLSA where a former employer reported them
to.immigration authorities after learning of their FLSA action); see
also Perez v. Jasper Trading, Inc., 2007 U.S. Dist. LEXIS 92375, at *6-7
(E.D.N.Y. Nov. 17, 2007) (finding a prima facie case of retaliation
under New York Labor Law Sec. 215 where " 
In response to the plain-
tiffs' requests, and for the purpose of discouraging the plaintiffs from
pursuing their rights, the defendants threatened to contact governmental
and immigration authorities if the plaintiffs continued to demand just
compensation."); see also Liu v.  Elegance Rest. Furniture Corp., 2017
U.S. Dist. LEXIS 160110, at *14 (E.D.N.Y. Sept. 25, 2017) (denying
summary judgement to employer on FLSA retaliation claim because " 
THE
EMPLOYER suggested on multiple occasions that  
THE EMPLOYEE'S immi-
gration status was imperiled by this lawsuit, a reasonable worker in
 
THE EMPLOYEE'S shoes may have been dissuaded from bringing this
action.").

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law. Effective immediately, the addition, amendment and/or
repeal of any rule or regulations necessary for the implementation of
this act on its effective date are authorized to be made and completed
on or before such date.