New York State Department of Labor Establishes New Process Introduced by Biden Administration to Safeguard Undocumented Workers
Changes Strengthen Efforts to Hold Unscrupulous Employers Accountable
Governor Kathy Hochul today announced that the New York State Department of Labor has implemented a new process to shield undocumented immigrant workers from retaliation and removal during labor disputes, expanding on the protections implemented earlier this year by the Biden administration. Through an interagency partnership with the U.S. Department of Homeland Security, NYSDOL is now working with undocumented workers and their advocates to gain temporary protection from prosecution and potential removal, as well as the ability to work legally in the U.S. if the worker is involved in State NYSDOL investigations. This process of prosecutorial discretion, which under the Biden administration has been expanded to include state agencies, helps to alleviate reluctance to report unscrupulous employers by undocumented workers, who are often threatened with removal or other forms of retaliation.
“This important partnership with the U.S. Department of Homeland Security will not only help to protect the integrity of our labor investigations, but also the safety of vulnerable New York workers,” Governor Hochul said. “New York is proud to lead the nation in worker protections, and we will continue to work with our local, state, and federal partners to ensure that all workers enjoy their right to fairness and safety in the workplace – regardless of their immigration status.”
Undocumented workers involved in workplace labor investigations by the NYSDOL may submit, or have an advocate or attorney submit on their behalf, a Statement of Interest request to NYSDOL supporting prosecutorial discretion from DHS. The Worker Protection Unit will evaluate the request and render a determination within 30 days. Separately, the worker would need to submit a concurrent filing for deferred action to DHS. Each application is reviewed by DHS and, if approved, the worker may be granted deferred action, which protects them from removal for two years, or longer in the case of ongoing investigations or subsequent payouts from employers. New York State has granted 32 Statements of Interests since the launch of this process, impacting more than 100 workers.
Once a Statement of Interest letter has been accepted by DHS, all workers at a worksite impacted by the investigation are eligible to apply for deferred action. For more information about the process, visit the prosecutorial discretion webpage.
New York State Department of Labor Commissioner Roberta Reardon said, “Fear of retaliation is paralyzing for any worker, but it is especially dreadful for immigrants. At the Department of Labor, we investigate all complaints, regardless of immigration status. We believe that all workers have rights in every workplace across New York State. If any worker is a victim of or a witness to labor violations, please report it to us. We can help.”
Senator Kirsten Gillibrand said, “Undocumented immigrants contribute to New York State’s economy and deserve to have workplace protections regardless of their immigration status. I support Governor Hochul’s efforts to implement safeguards for undocumented workers and hold employers accountable.”
Representative Jerry Nadler said, “All workers deserve to be free from workplace exploitation and retaliation, and I applaud Governor Hochul’s announcement today which will help safeguard New York’s undocumented workers throughout labor investigations. The NYSDOL’s partnership with federal partners at DHS will bring more unscrupulous employment practices out of the darkness as workers can be assured they will not face retaliation for speaking up about the conditions they face.”
Representative Paul Tonko said, “Without necessary protections in place, exploitative employers are too often able to prevent undocumented workers from speaking out against illegal or dangerous workplace conditions with threats of deportation, thereby undermining the rights and protections of all workers. No worker should be forced to remain silent for fear of retribution. I’m grateful these federal measures I supported are being implemented to protect immigrant workers and ensure better standards and a safe work environment for all.”
Representative Adriano Espaillat said, "I commend Governor Hochul on today's announcement to reaffirm our efforts to ensure protections of undocumented workers from the threat of deportation and other forms of immigration-related retaliation during investigations of labor rights violations from dishonest employers in the state. Many of these workers are afraid to report such violations in fear that they will become targeted for removal or other threats as a result of their actions. We stand united to help safeguard vulnerable workers and to hold unscrupulous employers accountable.”
Richard Blum, Attorney at the Legal Aid Society said, “The issuance of statements of interest by the New York State Department of Labor is a key step in combatting the threats and pervasive atmosphere of fear that usually accompanies wage theft and other egregious labor practices.”
Callen Lowell, Equal Justice Works Fellow, Brooklyn Defender Services said, “For too long, unscrupulous employers have profited off immigrant workers who fear retaliation by paying them sub-minimum wages. By issuing Statements of Interest, the New York State Department of Labor has taken a critical step to make our clients less vulnerable to immigration-based retaliation from employers.”
This is the latest in a series of efforts by Governor Hochul to protect and support undocumented residents across New York State, and prevent unscrupulous employers from using removal to evade state labor laws. In May, the Governor called on the federal government to expedite work authorization for asylum seekers. In February, Governor Hochul announced the expansion of the New York State Professional Pathways for High-Skilled Immigrants Program, which helps new Americans find jobs that match their skills and experience. In October 2021, she signed legislation protecting undocumented immigrants from threats to report their immigration status.
NYSDOL’s Division of Labor Standards protects all workers, including those who are undocumented or paid off the books. For more information, visit the Division of Labor Standards website. Additionally, NYSDOL’s Division of Immigrant Policies and Affairs (DIPA) ensures the Department’s services, programs, and protections are available to all workers, including people who work in or move to New York from another country. For more information visit the DIPA webpage.