Jottings By An Employer's Lawyer

Thursday, April 22, 2010

POWER To The People and Unintended Consequences

Immigration is a political hot button, which may be one of the greatest understatements of the year. It is certainly an issue on which people disagree, unfortunately, often disagreeably.

I certainly don't want to add to that unhelpful dialogue, but I have to admit my first reaction on reading the substance of the POWER Act (Protect Our Workers from Exploitation and Retaliation Act) was to quickly jump to what I forsee as unintended consequences.  The bill was introduced by Senator Menendez (D - NJ) and at this point has only three co-sponsors, Senators Gillibrand (D-NY), Murray (D-Wash), and Harkin (D-Iowa).

In short, the bill would prevent the deportation of individuals during the pendency of certain proceedings. One is criminal prosecutions where the individual is important to the prosecution. I can see how that could help overall crime enforcement and since the initiating action, a crime, is by some one other than the person tryng to avoid being deported, not that easy to abuse.

The other type of proceeding hower is serious labor violations. Under that section, an individual could avoid deportation if the individual:
(2)(A) has filed, or is a material witness to, a bona fide workplace claim (as defined in section 274A(e)(10)(B)(iii)(II) of such Act, as added by section 3(b)); and

(B) has been helpful, is being helpful, or is likely to be helpful to--

(i) a Federal, State, or local law enforcement official;

(ii) a Federal, State, or local prosecutor;

(iii) a Federal, State, or local judge;

(iv) the Department of Homeland Security;

(v) the Equal Employment Opportunity Commission;

(vi) the Department of Labor;

(vii) the National Labor Relations Board; or

(viii) other Federal, State, or local authorities investigating, prosecuting, or seeking civil remedies related to the workplace claim.
summary of key provisions by the National Immigration Law Council makes it seem that protection from deportation would extend to a civil claim:
Stay of removal and employment authorization. Workers who have filed workplace claims or who are material witnesses in a workplace claim may receive a stay of removal and employment authorization until the workplace claim is resolved. This would allow workers to more effectively claim their labor rights and would allow the U.S. Department of Labor (DOL) to effectively prosecute employers who break the law.
It is not clear whether the suit has to be prosecuted by the government or if protection is extended to a suit where the individual employee is the plaintiff.

Although there is a provision that filing a claim just to avoid deportation will not be allowed, it does not take a genius to figure out that this statute will lead to a lot more suits and that "protection" against suits filed for that purpose is feeble to non-existent.

One of the aims of the legislation is certainly laudable, to provide a counter-balance to those unscrupulous employers who hire illegal aliens, take advantage of them and use either actual immigration enforcement or the threat of it to insulate them from liability for their wrong doing.

I won't argue with that aim, but on first blush, I have to believe there is a better solution.

Hat tip to Prof Marcia McCormick at Workplace Prof Blog,  Bill to Protect Non-Citizen Workers.


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