Introduction
As organizers, you know the serious consequences employer retaliation can have on organizing campaigns and
workers trying to assert their rights. Employers continue to grow more sophisticated in their retaliation and have
been able to use immigration enforcement as yet another weapon. Bad bosses can play off of workers’ fear of
deportation and threaten workers with immigration enforcement to stop workers from organizing or speaking up
on the job. That’s why it’s increasingly important to know what to do to stop bad bosses from using immigration
enforcement to divide, exploit and retaliate against workers.
Workplace laws cover all workers in any given industry the same, regardless of immigration status. And, according
to federal policies, labor and civil rights laws take precedent over immigration violations. Despite these policies
being on the books, Immigration and Customs Enforcement (ICE) agents often do not check to see if there is an
organizing drive, labor dispute or other protected labor rights issue at a given workplace – let alone with an
individual worker – before they act. Both immigrants and egregious employers are well aware of the agency’s
reputation for aggressively pursuing immigration violations in the workplace and inconsistent practice of
honoring workplace disputes. Consequently, the perceived or real threat of immigration agents has the potential
to destroy organizing efforts.
ICE agents physically entering the workplace for an investigation or audit will stoke fear in the worksite, and
organizers must also be prepared for the litany of other ways immigration can play into situations where workers
try to exercise their rights. Underhanded employers may ask workers to resubmit I-9 and employment paperwork,
threaten to start using E-Verify, or make a backhanded comment that immigration might be called. It is vitally
important for us to develop and share strategies to use existing policies and stop immigration-based retaliation to
make sure that workers have the right to organize and hold bad bosses accountable.
At Jobs With Justice we want to make sure that organizers are in the best position to stop retaliation. This packet
is based off of our experience and collaboration with our partners on the POWER Campaign, which protects
immigrant workers’ right to organize by working to eliminate the threat of ICE, and is intended to be the starting
point for a conversation and collaboration to help further build strategies to protect workers and organizing.
Included in this guide:
1. Summary of existing policies providing workplace protections for immigrants
2. Examples of strategies to eliminate immigration threats, stop retaliation, and win protections
3. Links to copies of federal policies and additional resource
Summary of Existing Legal Protections
Department of Homeland Security Protocols and Policies
The federal government has recognized that labor and employment law must generally take precedence over
immigration enforcement to ensure basic labor and civil rights. This means that ICE should not take action
against workers who are asserting their rights.
In addition to being spelled out specifically in ICE’s own Operating Instructions under 287.3a which instructs ICE
agents to take reasonable steps to avoid being entangled in a labor dispute,1 it is also reinforced by numerous
governmental policies, including:
 The DHS memorandum “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs,” dated June
17, 2011 (“Prosecutorial Discretion Memo”)2, says, ”To avoid deterring individuals from reporting crimes
and from pursuing actions to protect their civil rights, ICE officers, special agents, and attorneys are
reminded to exercise all appropriate discretion on a case-by-case basis…Particular attention should be
paid to: [among others]…individuals engaging in a protected activity related to civil or other rights (for
example, union organizing or complaining to authorities about employment discrimination or housing
conditions) who may be in a non-frivolous dispute with an employer, landlord, or contractor.”
 The “Revised Memorandum of Understanding between the Departments of Homeland Security and Labor
Concerning Enforcement Activities at Worksites,” dated December 7, 2011 (“ DOL-ICE MOU”).3 This
memo was designed to ensure DOL and ICE worksite enforcement activities do not conflict and limits the
worksite enforcement power of DHS’s Immigration and Customs Enforcement agency (ICE) when a DOL
investigation is pending, and requires ICE to check with DOL to make sure there is not an ongoing labor
dispute prior to worksite investigations.
 The Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and
Immigration Laws November 2015 “Action Plan” 4 added the NLRB and the EEOC to the “de-confliction”
process under the DOL-DHS MOU by which DOL and ICE seek to avoid ICE conducting I-9 audits at
locations where there are ongoing DOL investigations or enforcement activities.
Although these policies say workplace organizing is protected and takes priority over enforcement of civil
immigration law, ICE may not know organizing is taking place until it is too late. We also know that ICE has not
implemented training or other procedures to make sure ICE agents consistently and routinely follow the policies
related to workplace organizing. Therefore it is important that organizers are familiar with these policies and
proactive strategies that can be used to help make sure ICE does not interfere (see “Strategies” section below).
Additionally, in circumstances where workers have ended up in removal proceedings, sometimes organizers and
lawyers have been successful in working together to use these policies to get a stay of removal, deferred action or
other remedy for the worker.5
The NLRA Protects ALL Workers Regardless of Status
The National Labor Relations Act (NLRA) provides protections for most workers in the private sector, who act
together and participate in concerted activity designed to improve working conditions – regardless of immigration
status. This is the most basic set of protections for workers who are organizing or on strike, but it is sometimes
wrongly assumed that immigration status interferes with a person’s labor or civil rights*. Retaliation involving
threats related to immigration or involving ICE while workers are organizing with a union can be grounds for an
unfair labor practice (ULP) charge and should be reported to the National Labor Relations Board (NLRB). 6
Additionally, to allow for greater technical assistance and enhanced opportunities to protect potential victims and
1
OI 287.3a Questioning persons during labor disputes. (Revised 12/04/96; Added to INSERTS April 99)
http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-53690/0-0-0-61072/0-0-0-61097.html (also see appendix)
2
http://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf (also see appendix)
3
http://www.dol.gov/asp/media/reports/DHS-DOL-MOU.pdf (also see appendix)
4
http://www.dol.gov/dol/fact-sheet/immigration/IWGDecember2015ProgressReport.htm
5
www.nilc.org/document.html?id=362
6
http://www.nelp.org/page/-/Justice/2011/RightsandRemediesforUndocumentedWorkersinOrganizing.pdf?nocdn=1
Jobs With Justice | Confronting Exploitation, Retaliation and Deportation to Build Power for Immigrant Workers | 2
witnesses, the NLRB general counsel has released a memo instructing field offices on updated procedures that
include mandating that regional offices contact dedicated headquarters staff once they are aware that immigration
status may be an issue at any stage of a case. 7 This could help lead to greater protections, so organizers should
notify regional NRLB contacts, outside the presence of management representatives, if immigration issues arise
during the course of any potential ULP or other Board filings.
*Confusion on the rights of undocumented immigrant workers was spurred on by a Supreme Court case called Hoffman Plastic Compounds,
Inc. v. NLRB (“Hoffman”), which affects the ability of unauthorized immigrant workers to collect full damages or be reinstated to the job under
the NLRA. So while the right to organize under the law applies to all workers, the Hoffman decision means that remedies granted to the
worker could be different. To put it another way, all workers under the NLRA have the same right to organize and if that right is violated by a
bad employer they have the same right to hold them accountable, but once the employer is found guilty the worker may not be given back
wages or be given their job back like authorized workers.8
Policies Barring Retaliatory Use of I-9 Audits and E-Verify Programs
Employers may suddenly decide to reverify immigration status and paperwork of workers who complain about
wages or safety on the job, or after catching wind of any organizing. Employers are only allowed to use the I-9
employment verification9 documents and the E-Verify systems10 in a specific, limited manner to avoid this type of
retaliation. Workers and organizers should be trained and ready to spot improper use of these types of document
checks. If it is believed to be done in retaliation, it could be grounds for a ULP and should be reported to the
NLRB.
U-Visa Access
In some circumstances workers who report abuse and help hold an employer accountable may qualify for a U-visa.
U-visas were established to encourage immigrant victims to come forward and report certain crimes. Although
most commonly used for the victims of violent crimes, U-visas can also be granted for certain crimes at the
workplace, such as obstruction of justice, extortion, or peonage where workers have suffered substantial physical
or mental harm. Under the protection of a U-visa, workers are given status and work authorization that allows
them to continue to organize and hold employers accountable.
Protections Coming From Expansion of Work Permits Through the Executive
Order on Immigration
In November 2014, President Obama announced a series of executive actions to improve the dysfunctional
immigration system that perpetuates a cycle of exploitation, retaliation and deportation of immigrant workers.
One highlight of the administrative action is the plan to eventually offer work permits to millions of immigrants
who qualify and apply for relief through the Deferred Actions for Parents of Americans and Legal Permanent
Residents (DAPA) or Deferred Action for Childhood Arrivals (DACA) programs. The ability to work with
authorized status is the single most important protection for immigrants because it ensures that bad employers
can’t use the threat of immigration enforcement to retaliate against employees.
While the application process has been stalled due to an anti-immigrant lawsuit as of this toolkit’s publication,
organizers should support workers’ enrollment in DAPA or DACA if and when it does open up. Organizers should
become familiar with what trusted groups11 and community organizations are assisting with the enrollment
process and share information with workers. This is a chance to help workers avoid “notario fraud” (attorneys who
7
http://apps.nlrb.gov/link/document.aspx/09031d4581b1d428
http://www.nilc.org/hoffman.html
http://www.nilc.org/i9.html
10
http://www.nilc.org/everifyinfo.html
11
Find local trusted groups at http://www.adminrelief.org/legalhelp/
8
9
Jobs With Justice | Confronting Exploitation, Retaliation and Deportation to Build Power for Immigrant Workers | 3
charge unreasonable sums and take advantage of immigrants) AND get workers connected with other
organizations in the movement.
Strategies to Stop the Threat of Retaliation
Community Engagement to Ensure ICE Neutrality
Attracting community support into an organizing campaign is a surefire way to boost workers’ confidence.
Community engagement strategies can be designed to do much more – such as neutralizing employers’ ability to
deploy ICE to interfere with workers who are organizing or engaged in a labor dispute. Through the POWER
Campaign, organizers have developed successful strategies for workers to proactively secure “ICE Neutrality” by
incorporating a variety of tactics like community forums, organizational sign-on letters, actions at ICE offices, and
meetings and delegation visits with policymakers and ICE officials.12
Filing Labor Dispute Charges With Federal Agencies to Protect Organizing
Because federal directives give priority to enforcement of labor, employment and civil rights laws over
immigration enforcement, it is crucial to file claims as early as possible in an organizing campaign. Engage
workers to be ready to monitor and report any potential workplace violation during the organizing drive –
including wage and hour, health and safety, discrimination, or unfair labor practices. Filing charges is effective
offense and can set organizers and workers up for protections in case the employer does try to retaliate using
ICE.13
Know-Your-Rights Palm Cards
Palm cards can be effective tools to distribute to educate individuals about their civil rights and to feel secure in
asserting their right to remain silent and their right to a lawyer when confronted by local law enforcement or by
ICE, regardless of whether they are part of ongoing organizing or a labor dispute. The card is something workers
can carry with them and simply show to ICE or law enforcement to assert their right to remain silent and request a
lawyer.14
Protection Letters
In some instances organizers have had workers carry “protection letters” in case they come into contact
with ICE agents while engaged in an organizing or a labor dispute. This is a document that cites the
laws that protect workers in labor disputes from deportation. These letters may or may not protect an
individual from being put into deportation proceedings, so we urge organizers to use this tactic as a last
line of defense and to have the letters and any accompanying legal guidance drafted in consultation with
union lawyers or other legal support. Please contact National Guestworkers Alliance or Jobs With
Justice for sample language.
Collective Bargaining Agreements
Even after a successful organizing drive, bad employers can continue to try to intimidate workers prior to or after
contract settlements. Incorporating specific protections into collective bargaining agreements (CBAs) can provide
further support for immigrant workers who may otherwise continue to feel vulnerable. Below are some examples
of the types of issues that can be addressed through CBA language. If you are interested in seeing more detailed
sample language, please contact Jobs With Justice.
See attached case study “How Community-Labor Strategies can Bolster Immigrant Organizing”
www.nilc.org/document.html?id=362
14
https://nilc.org/document.html?id=21
12
13
Jobs With Justice | Confronting Exploitation, Retaliation and Deportation to Build Power for Immigrant Workers | 4
A. May not reverify work authorization unless required by law.
B. Will not participate in E-Verify or any similar state or local programs unless required by law.
C. Will provide notice of any ICE raid or audit to the union and bargaining unit members, unless
prohibited by law.
D. May not fire a worker, or require the worker to reverify her work authorization based on a Social
Security Administration no-match letter.
E. May not conduct background checks or utilize Social Security number verification without permission
by the union.
F. Must post all notices in [insert all/predominant languages of the unit].
G. Shall permit employees to take a 120-day leave of absence to correct any issues with his/her work
authorization, and upon correction of the issue, shall be returned to his/her position without loss of
seniority.
Expanding U-visa Access
U-visas have more often been used in cases where violent crime has taken place than in the context of workplace
crimes, but over the last several years organizers have been increasingly successful in getting governmental
agencies to certify U-visa applications for work related crimes and in pushing USCIS to ultimately approve
applications for workers so that they can continue organizing and hold employers accountable. The National
Employment Law Project has put together a detail practice manual on how to apply for U-visa for workplace
crimes15. Jobs With Justice, the National Guestworkers Alliance, the National Day Labor Organizing Network
(NDLON), and the AFLCIO can be good resources for advice on organizing and legal strategies to win U-visas.
Deportation Defense
If a worker is put into deportation proceedings whether as a result of employer retaliation or because of a random
traffic stop, a targeted campaign to stop a deportation order should be pursued. The #Not1More Campaign offers
a general step-by-step guide to the process of conducting a public campaign against a person’s deportation
including how to work on these cases with limited support from an attorney. 16
Appendix
1. Example palm card to assert right to remain silent
2. Example protection letter
For more information please contact Natalie Patrick-Knox, natalie@jwj.org or 202-393-1044 x 130.
15
16
http://www.nelp.org/page/-/Justice/2014/U-Visas-for-Victims-of-Workplace-Crime-Practice-Manual-NELP.pdf?nocdn=1
http://www.notonemoredeportation.com/resources/step-by-step-guide/
Jobs With Justice | Confronting Exploitation, Retaliation and Deportation to Build Power for Immigrant Workers | 5