Labor organizers seek deferred action to stem abuse of undocumented workers

Employers often take advantage of the dysfunctional immigration system in the U.S. to intimidate undocumented workers who try to obtain better working conditions, say labor organizers, but organizers are now looking to use deferred action protections to protect workers in labor disputes.

“The immigrant workforce being exploited has pretty much been a part of 70 to 80 percent of campaigns we’ve run,” said Lance Ryken, director of organizing for district council 16 of the International Union of Painters and Allied Trades. “It’s been an issue for a long time that we don’t actually have the ability to give them the protections that they need.”

At a roundtable Wednesday, labor organizers described a culture where employers use threats of deportation for those who try to unionize or report safety violations. Immigrant workers in Nevada describe having their wages stolen and working overtime without extra pay, said union organizer for district council 16, Savannah Palmira.

“Workers tell me all these stories, but they won’t report,” Palmira said.

The looming threat of deportation results in rampant abuse against workers, including day laborers, said Bliss Requa-Trautz, director of Arriba Las Vegas Workers Center, an immigrant rights group. Deportation threats are “holding back thousands of workers in Nevada who want to be in a union.”

“Employers know that you can get rid of an investigation, whether it’s a wage investigation or an OSHA violation investigation. You can make the problem go away if you make the workers go away,” said Requa- Trautz.

Even if a worker is undocumented, employment and labor laws in the U.S. protect the rights of all workers, regardless of immigration status, said Requa-Trautz.

Labor organizations in Nevada are now looking at a little known process to protect immigrant workers from retaliation during labor investigations.

Like the well-known Deferred Action for Childhood Arrivals program, or DACA, deferred action for labor enforcement could temporarily protect workers from deportation who report labor abuses. Requa-Trautz and other labor organizers are asking the Biden administration to protect workers who report wage and hour, health and safety, and sexual harassment at work from deportation as part of a campaign they are calling DALE, or Deferred Action for Labor Enforcement.

“Deferred action as a concept in imigration law has existed forever,” said Angel Graf, directing attorney for the Immigration Center for Women and Children. “The Department of Homeland Security has always had the ability to decide not to enforce.”

Unions and worker centers have seen organizing efforts stifled by employers who use threats of deportation to upend union organizing drives and disrupt labor enforcement investigations. Deferred action protections would ensure that workers have the protection necessary to report labor violations, wage theft, and health and safety issues without fear of retaliation from their employers, Graf said.

“You can’t just call (Immigration and Customs Enforcement) because you’re pissed off because there’s a union organizer on your company property,” Graf said.

Labor organizers point to a 2011 memo from the Department of Homeland Security acknowledging that the Department of Labor is allowed to request deferred action for any witnesses in their investigation of a labor dispute.

“We’ve seen more success with it as a tool to level the playing field in recent changes made by the current administration,” Graf said.

“We are not utilizing this protection enough,” said Requa-Trautz. “We’ve seen such limited grants because as a movement we haven’t come to the table and said (Department of Labor) use your powers because we need it.”

Nationally, advocates are pushing to advance a measure called the POWER Act that would allow immigrant workers to obtain a U visa – a visa granted to victims of crimes who cooperate with law enforcement- while a labor complaint is under investigation. 

Locally, Requa-Trautz said state labor enforcement agencies have the power to address labor violations more forcefully.

Deferred action for workers reporting labor violations has recently been pushed by other labor advocates in Gainesville, Georgia after a poultry plant explosion resulted in the deaths of six people.

Labor organizers in Nevada are now moving to use the process of deferred action with a request to the U.S. Department of Labor for the workers of Unforgettable Coatings. 

The company— which was hired to paint portions of Allegiant Stadium — is alleged to be a two-time wage theft offender, according to a federal judge, who wrote in an injunction that the company failed to pay overtime from September of 2019 when the Department of Labor began its investigation, until March of 2020 when the government filed its complaint.  

Last year, federal Judge Kent Dawson wrote in his order that Unforgettable Coatings tried “not only to silence their workers, but also to actively manipulate them to provide false information to the government’s investigators.”

“We formally requested deferred action protections for all of the workers, current and former, of Unforgettable Coatings in April,” Requa- Trautz said.

“If we want to change the industry, if we want to fix the issues in Las Vegas we need to address Unforgettable Coatings and we need to create an avenue for workers to feel safe,” Requa-Trautz said.

In April, Unforgettable Coatings’ owner Cory Summerhays told the Current he’s been a target of bullying by the painters union and maintained that he pays his employees legally for the work they perform.

“I am a competitor and in my opinion they don’t want me around,” Summerhays said of the painters’ union.

Palmira, a labor organizer for district council 16 of the painters union, said she has been investigating the company for two years and claims immigrant workers have told her the company failed to pay them overtime. Payroll records reviewed by the Current last year indicate entry-level painters were being underpaid by approximately $1,900 a year. 

“Deferred action is something that I can bring to them to get them to report or to at least allow them to feel safer to report,” Palmira said.