NYC Comptroller Urges DHS To Extend Period of Protection Against Deportation for Noncitizen Victims & Witnesses During Labor Violation Investigations

New York, NY – New York City Comptroller Brad Lander joined a coalition—spearheaded by the Massachusetts Attorney General’s Office, the Illinois Attorney General’s Office and the Seattle Office of Labor Standards—of 27 labor enforcement agencies, including state attorneys general and other state and local entities, in calling on the U.S. Department of Homeland Security (DHS) to extend the protection period of the Deferred Action for Labor Enforcement (DALE) program for noncitizen victims and witnesses of labor violations from the current two years to a minimum of four years in order to better support labor rights enforcement efforts.

The call for extending DALE protection period was made via a letter to DHS.

“By joining this coalition of nearly thirty labor enforcement agencies across the country calling on DHS to extend Deferred Action for Labor Enforcement protection period for immigrant workers who witness or experience labor violations, my office recognizes the vital contributions of immigrant workers in our country’s economy, despite immigrants often facing significant exploitation in their workplaces,” said New York City Comptroller Brad Lander. “My office enforces New York City’s prevailing wage law, and we often see undocumented immigrants worried about retaliation and immigration enforcement. By extending their protection period, we can empower workers to come forward about labor violations and abuses without fear and hold their employers accountable.”

DALE offers protection from deportation for noncitizens who are victims or witnesses of labor rights violations or who are otherwise the subjects or participants of a labor investigation. DALE also grants work authorization for individuals who demonstrate a need to work. The current deferred action protection period is two years, after which an individual may apply for a renewal to extend their protection.

Noncitizen workers are disproportionately employed in low-wage and high-turnover industries where they are vulnerable to exploitation by employers who often purposefully target them and violate their rights with illegal practices. These practices include paying below the applicable minimum wage, failing to pay workers all their wages or delaying their wages, refusing to pay overtime, failing to follow record-keeping requirements, misclassifying employees as “independent contractors,” denying them access to earned sick time, failing to provide workers compensation coverage, and exposing them to workplace health and safety hazards. These violations are common in industries such as cleaning, construction, and food service.

The Office of the New York City Comptroller enforces prevailing and living wage laws in New York City and is authorized to issue Statements of Interest related to its investigations.   Prevailing wage is the wage and benefit rate set annually by the Comptroller for workers performing construction work on public projects or building service work on City-funded sites or properties that receive certain tax benefits from the state. The New York City prevailing wage law also applies to certain City contracts for temporary services and food services.

DALE enables labor enforcement agencies to secure cooperation in investigations from noncitizen victims and witnesses of labor violations by lessening noncitizen workers’ fear of deportation. Such agencies rely heavily on workers’ willingness to report labor rights violations, provide information during investigations, and act as witnesses during enforcement efforts.

However, due to the often-complex nature of such investigations along with the challenges in securing witness cooperation from noncitizens fearful of deportation and retaliatory threats of deportation from their employers, these cases often extend beyond two years before agencies can complete enforcement. If noncitizen workers lose their protection from deportation prior to completion of an investigation and any related enforcement action, they may be unable to serve as witnesses or continue assisting these agencies. Without ongoing protections, labor law violations may go unpunished, undermining the efforts of such agencies and witnesses. The coalition thus urges DHS to extend the deferred action protection period from two years to four years.

While workers are able to apply for a renewal of protections after the current two-year period of protection expires, the renewal process can be complex and burdensome for both workers and the agencies involved, with no guarantee that a renewal will be granted. An extension of the protection period would allow noncitizen workers to be less reluctant to work with law enforcement, knowing that they will be protected for an extended period of time without needing to undergo an uncertain renewal process.

In the letter, the coalition also provides multiple examples of enforcement actions taken by their agencies that require more than two years to complete.

Joining the New York City Comptroller’s Office in sending the letter are the Attorneys General of California, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, and Vermont, along with the Seattle Office of Labor Standards, California Labor and Workforce Development Agency, the California Labor Commissioner’s Office, the California Department of Industrial Relations – Department of Occupational Safety and Health, the California Agricultural Labor Relations Board, the Denver Labor Auditor’s Office, the Los Angeles County Office of Labor Equity, and the Travis County District Attorney’s Office.

The letter in its entirety may be viewed here.

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