Illegal Rule Shields Abusive Employers from Accountability, Discourages Vulnerable Workers From Reporting Crimes and Mistreatment
New Orleans Workers’ Center for Racial Justice Shows How Trump Admin Rule Allows Abusive Employers to Continue to Harm Workers
Washington, D.C. — Today, on behalf of the New Orleans Workers’ Center for Racial Justice (NOWCRJ), Democracy Forward sued the Department of Labor (DOL) for unlawfully eliminating essential protections for immigrant victims or witnesses of workplace crimes and human trafficking. DOL previously ran a robust and effective program to certify visa applications for those workers who were able to assist DOL in investigating workplace crimes. The Trump administration’s changes to this program make workers less safe and discourage them from aiding law enforcement in combating workplace crimes — making it easier for abusive employers to get away with exploitation. The visa certification rule violates the Administrative Procedure Act because it was executed in an arbitrary and capricious manner, and was issued without the proper procedure.
“The Trump administration’s new rule abandons everything that made the Labor Department’s visa certification program effective,” said Sabina Hinz-Foley Trejo, lead organizer for NOWCRJ’s Seafood Workers Alliance. “In ripping up the protections that allowed immigrant workers — including many seafood workers — to report abusive employers without fear of retaliation or deportation, the Labor Department has threatened victims’ safety and discouraged them from reporting serious crimes.”
“The Department of Labor’s new rule jeopardizes workers’ safety, is ill-considered and unlawfully crafted,” said Democracy Forward Senior Counsel Robin Thurston. “The Trump administration has turned its back on immigrant victims of human trafficking and serious workplace abuse — with the pernicious effect of letting criminal actors off the hook.”
U and T visas allow immigrant victims of serious crimes — including human trafficking, labor exploitation, and other workplace offenses — who are able to assist in the investigation and prosecution of criminal offenders to remain in the country with lawful status. Prior to the Trump administration’s unlawful change, DOL’s Wage and Hour Division ran a robust program to certify both types of visa applications when immigrants assisted DOL in the detection and investigation of crimes. Workers facing abuse could then petition USCIS to obtain immigration protections that weren’t dependent on their employers.
In July 2019, however, the Administrator of the Wage and Hour Division promulgated a new rule that upends DOL’s U and T visa certification process. The change, titled Addendum 2 t0 Field Assistance Bulletin 2011-1, makes the following harmful changes:
- Requires worker complaints be immediately referred to a criminal law enforcement agency before certifying a visa request and eliminates a requirement that the worker’s safety be a primary consideration in the timing of such referrals.
- Requires DOL to wait for the relevant criminal law enforcement agency to agree with the assessment of a potential qualifying crime before certifying a visa request — despite DOL’s authority to act independently.
- No longer requires that certification decisions be made in a timely manner, denying victims of workplace crimes recourse and shielding abusive employers from enforcement.
- Applies to requests for certifications submitted prior to the issuance of the addendum, potentially harming workers who submitted certification requests in good faith based on the prior rule.
These new requirements limit options for workers who fear interacting with traditional law enforcement agencies, especially in regions where local law enforcement is hostile to immigrants. Such local law enforcement agencies have referred immigrants who report workplace violations to immigration enforcement and alerted their employers of the allegations — raising real concern about immediate workplace retaliation, like dismissal, blacklisting, and the threat of deportation. As NOWCRJ has seen, immigrant workers have historically been more comfortable reporting violations to DOL than to other law enforcement agencies. But the new rule eliminates that comfort and discourages cooperation.
DOL’s unlawful new rule has, for example, forced immigrant workers organizing with NOWCRJ’s Seafood Workers Alliance to delay and abandon plans to report abusive working conditions to DOL for fear of the consequences of immediate referral to criminal law enforcement and retaliation by their employer. Previously, immigrant workers like Martha Uvalle — a guestworker from Mexico who organized against ghastly workplace abuses and threats of violence by her employer — were able to obtain DOL certifications and U visas, which provided immigration protection after the loss of employer-sponsored visas. This crucial path for workers to obtain protections and contribute to enforcement efforts is now limited.
Hypocritically, considering the administration’s new visa certification rule and its inexplicable cuts to funding for victims of human trafficking, President Trump has repeatedly boasted of his attempts to “end the scourge” of trafficking. In January, for example, he held a summit on human trafficking and announced there’d be new attention paid to the issue. “I have never seen such enthusiasm for a single issue as I have for human trafficking,” the president said then. But President Trump’s administration has continually pursued policies that hurt victims of trafficking and workplace abuses. The new certification rule is particularly harmful amid the pandemic because, as the administration has recently acknowledged, “the number of people vulnerable to exploitation by traffickers is rapidly growing.”
Last December, Democracy Forward sued the Department of Labor for refusing to release records related to the rule change. Records eventually released by the Department confirm the change was made at the direction of DOL’s political leadership and was made retroactive.
The suit was filed on July 7 in the U.S. District Court for the District of Columbia. Read it in full here.
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.
The New Orleans Workers’ Center for Racial Justice (NOWCRJ) was founded as a workers’ rights and racial justice response to the man-made disaster that came along with Hurricane Katrina. As politicians and employers attempted to use the storm to pit communities of color against each other, a group of Black and immigrant workers came together from public housing developments, FEMA trailer parks, day labor corners, and labor camps across Louisiana to build a new freedom movement: multi-racial; committed to racial, gender, and immigrant justice; and dedicated to building power at the intersection of race and the economy. For more than a decade, the members of NOWCRJ have continued to fight for dignity and justice, winning higher wages, better working conditions and pro-worker policies.
Sabina Hinz-Foley Trejo
New Orleans Workers’ Center for Racial Justice