“Process Enhancements for Supporting Labor Enforcement Investigations.”
Employers beware. This new process increases the likelihood that undocumented workers will pursue labor and employment claims against their employers, including wage-hour and EEO claims.
Of course, it is against the law for an employer to hire a worker who is not authorized to work in the United States, but some do that knowingly or unknowingly for a variety of reasons. The reasons may include a shortage of qualified workers available for hire, a desire to pay the worker less than would be required by law, or the worker’s presentation of false work authorization documents to the employer.
Under the DHS policy announced last week, workers “who are victims of, or witnesses to, the violation of labor rights, can now access a streamlined and expedited deferred action request process” and apply for employment authorization. The program creates two strong incentives for undocumented workers to accuse their employers of violations: (1) deferred action, and (2) the ability to obtain employment authorization.
Deferred action. Deferred action allows undocumented individuals to remain in the United States with no risk of deportation. The usual initial deferral period is two years. Requests can be filed even for those who are already in removal proceedings or already subject to a final order of removal. The DHS explains deferred action as follows:
Deferred action is a form of prosecutorial discretion to defer...
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