States Can Help Protect Immigrant Workers from Exploitation

by Mackenzie Yee

All workers, no matter where they were born, should be able to work under fair and safe conditions. No worker should be subject to exploitation, and there has been legislation at both the federal and state levels protecting workers’ rights, regardless of their immigration status.[1] Still, low-income immigrant workers, and particularly those who are undocumented, are especially at risk of being exploited in the workplace.[2]

Employers are able to exploit immigrant workers by threatening to report their immigration status if they complain about workplace abuses.[3] As a result, a handful of states have adopted laws prohibiting this type of extortion. The most recent such law was passed in May 2016, when Maryland became only the fourth state to pass a bill amending its extortion law to include threatening to report someone’s immigration status as criminal extortion if such threat is used to obtain something of value.[4] This law follows similar ones passed in Virginia and Colorado in 2006, and in California in 2013.[5]

Advocates for the immigration-based extortion laws have generally seen two broad categories of circumstances in which a law specifically prohibiting extortion based on the threat of reporting immigration status would protect immigrants in the employment setting: wage theft and forced labor.[6] The advocacy efforts to pass the bills in Virginia, California, and Maryland particularly focused on how such a law would contribute to fighting human trafficking, as immigration status is one of the factors that makes human trafficking victims vulnerable to exploitation.[7]

Extorting workers for free or forced labor based on the threat to report someone’s immigration status—whether it be a worker or a worker’s relative—can threaten the rights of both undocumented immigrants and workers who are either U.S. citizens or lawful permanent residents. Workers might be deterred from calling attention to workplace abuses if it would put their immigrant co-workers at risk of deportation.[8] In addition, using the threat of immigration-related retaliation to exploit workers would put employers who do not exploit their employees at a competitive disadvantage.[9]

While there have not been any cases of these immigration-based extortion laws being judicially enforced, there have been cases holding that the threat of reporting someone’s immigration status to receive something of value is extortion. In Flatley v. Mauro, the California Supreme Court found that threatening to expose violations of immigration law, among other things, in order to obtain a preemptive settlement constituted extortion.[10] Further, in Nuñag-Tanedo v. East Baton Rouge Parish School Board, a district court held that a recruiting company’s threat to deport immigrant teachers if they complained about the exorbitant fees they were required to pay to work was extortion.[11]

Both of these decisions occurred in California, based on California’s extortion law prior to the inclusion in the statute of threatening to report immigration status as a means of extortion. This shows that, in the case of California, the pre-2013 law was sufficient to protect against extortion based on immigration status. Critics of the immigration-based extortion laws worried that adding specific instances that constitute extortion, such as threatening to report immigration status, would allow the general extortion law to be interpreted as only encompassing the particular sets of facts spelled out in the law and not covering threats that are not specified.[12]

However, Flatley and Nuñag-Tanedo show that there was and is an existing problem that is directly addressed by immigration-based extortion laws. Such laws are an important tool for addressing the immediate and substantial harms of wage theft and forced labor. Furthermore, the existence of these laws will prevent this type of extortion from happening by deterring employers. Immigrants are particularly vulnerable to workplace violations and their rights may not be sufficiently protected by laws prohibiting extortion based only on threats of such things as a criminal accusation, economic injury, or violence. The threat of deportation encompasses various types of harms, including separating families, returning someone to dangerous conditions, placing someone in prolonged detention, or condemning someone to an unfamiliar and strange land. Because reporting a person’s immigration status carries so many different consequences, it may not fit neatly under a general extortion law, and thus a more explicit law is needed to notify employers that these types of threats would be considered extortion and punishable by law.

The idea that immigration-based extortion laws are meant to deter also addresses the concern that these laws put undocumented immigrants at more risk. The argument is that, if a person reports this type of extortion, state law enforcement officers would subsequently report the information obtained to immigration enforcement.[13] However, the laws are meant to prevent the extortion from happening in the first place. Moreover, even if a violation of the law is reported, in many communities, particularly those with so-called sanctuary policies,[14] law enforcement officers will be more interested in reducing crime and want immigrants to report crimes without worrying about their immigration status.[15] Those who report violations may also potentially qualify for a U visa, which conveys a lawful immigration status to victims of a set of qualifying crimes, including extortion.[16]

It may take time to understand how effective immigration-based extortion laws will be. Measuring the impact will likely be difficult if there are few records of past unreported extortion and if the actual effect of the laws is to deter employers. However, advocacy for such laws in states looking to protect the rights of their immigrant populations may be an action that anti-trafficking and immigrants’ rights advocates should take, particularly now when immigrants’ rights at the federal level are at a state of uncertainty and increasingly under attack. And as sanctuary policies are put more at risk, resulting in the increased fear in immigrant communities of reporting crimes, it may be even more important to prevent immigration-based extortion from happening in the first place. Striving to ensure fair working conditions and adequate compensation will only improve the lives of those working in the United States.

[1] See Nat’l Emp’t Law Project, Rights and Remedies for Undocumented Workers in Organizing (Aug. 2011), http://www.nelp.org/content/uploads/2015/03/RightsandRemediesforUndocumentedWorkersinOrganizing.pdf. An example of such a law is the federal National Labor Relations Act, which protects workers who engage in collective action to improve working conditions regardless of immigration status, with a few exceptions. Id.

[2] See Paul Harris, Undocumented Workers’ Grim Reality: Speak Out on Abuse and Risk Deportation, Guardian (Mar. 28, 2013), https://www.theguardian.com/world/2013/mar/28/undocumented-migrants-worker-abuse-deportation.

[3] See id.

[4] See Md. Code Ann., Crim. Law § 3-701; CASA Applauds Maryland Passage of Major Immigrant Rights Protection, CASA (May 20, 2016), http://wearecasa.org/casa-applauds-maryland-passage-of-major-immigrant-rights-protection/6/.

[5] See Cal. Penal Code § 519; Colo. Rev. Stat. § 18-3-207; Va. Code Ann. § 18.2-59.

[6] See Testimony of Sulma Guzman, Public Justice Center, Maryland House Judiciary Committee Hearing on H.B. 0493 (Feb. 16, 2016), http://mgahouse.maryland.gov/mga/play/e44f2c83-1e7c-4b6b-a3b8-73fd062ebf0c/?catalog/03e481c7-8a42-4438-a7da-93ff74bdaa4c&playfrom=726000; CASA Applauds Maryland Passage of Major Immigrant Rights Protection, supra note 4.

[7] Testimony of Michael Lori, Office of Senator Susan Lee, Maryland House Judiciary Committee Hearing on H.B. 0493 (Feb. 16, 2016), http://mgahouse.maryland.gov/mga/play/e44f2c83-1e7c-4b6b-a3b8-73fd062ebf0c/?catalog/03e481c7-8a42-4438-a7da-93ff74bdaa4c&playfrom=726000; Cal. Assemb. Comm. on Pub. Safety, Report on California Assembly Bill No. 524 (Apr. 1, 2013), available at http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201320140AB524.

[8] Cal. Assemb. Comm. on Pub. Safety, supra note 7, at 2.

[9] Id. at 2-3.

[10] Flatley v. Mauro, 139 P.3d 2, 22 (Cal. 2006).

[11] Nuñag-Tanedo v. E. Baton Rouge Parish Sch. Bd., 790 F. Supp. 2d 1134, 1151 (C.D. Cal. 2011).

[12] See Testimony of Louise Moss, Catholic Charities of Baltimore, Maryland Senate Judicial Proceedings on SB0178 (Feb. 4, 2016), http://mgahouse.maryland.gov/mga/play/28437264-9770-4089-a366-93f06c5b6e6d/?catalog/03e481c7-8a42-4438-a7da-93ff74bdaa4c&playfrom=17518000 (The chairman of the Maryland Senate Judicial Proceedings Committee questioned why immigration status wasn’t already covered by the then-existing Maryland extortion law); Cal. Assemb. Comm. on Pub. Safety, supra note 7, at 3.

[13] See Testimony of Louise Moss, supra note 12.

[14] For information on sanctuary policies, see, e.g., Lena Graber & Nikki Marquez, Immigrant Legal Resource Center, Searching for Sanctuary: An Analysis of America’s Counties & Their Voluntary Assistance with Deportations (2016), https://www.ilrc.org/sites/default/files/resources/sanctuary_report_final_1-min.pdf.

[15] Testimony of Louise Moss, supra note 12.

[16] See Nat’l Emp’t Law Project, The U Visa: A Potential Immigration Remedy for Immigrant Workers Facing Labor Abuse (Mar. 2014), http://nelp.org/content/uploads/2015/03/UVisa.pdf.