New York Immigration Coalition

Workers' Issues

Immigrants in the Workplace

The NYIC advocates on behalf of immigrant and low-wage workers at the national, state, and local levels, and seeks to address the exploitative treatment of immigrant workers, influence workforce development policies, and increase access to workers' benefits for immigrant workers. In particular, since its inception in 2003, the Workers' Rights Advocacy Program has promoted justice and opportunity for immigrant workers in New York by pushing for systematic enforcement and expansion of workplace protections, including labor and occupational health and safety standards; advocating for industry-specific efforts to improve working conditions; and educating immigrant communities about their rights in the workplace and how to exercise those rights. Furthermore, the Program has worked on policy develpment, conducted community-driven advocacy on issues of concern to immigrant workers, and facilitated immigrant access to benefits, job training, and other vital services.
Click here to learn more.

STATE LEVEL
The Program has been actively involved with and has coordinated efforts that push for statewide immigrant worker reforms. More recently, it has spearheaded the NYIC Statewide Advocacy Network (Network), a group of over 20 organizations across New York State that have come together to bolster efforts across the state to defeat anti-immigrant measures, advance pro-immigrant initiatives, and build electoral power. Through a collaborative process, the network enhances the capacity for advocates on the ground and regional coalitions by strengthening a system of information and resource sharing, as well as hosting statewide forums where advocates from across the state come together to discuss immigrant rights issues and policy development. The NYIC Statewide Advocacy Network has tackled vital immigrant priorities, including:

- Anti-immigrant measures such as Long Island’s e-Verify Bill and other punitive measures introduced in the Suffolk County legislature.
- Partnerships between Immigration and Customs Enforcement (ICE) and local law enforcement through the 287(g) provision
- Raids at Amtrak and Greyhound bus stations and workplaces in central and western New York

The Worker’s Rights Advocacy Program has also played a lead role in advocating for statewide administrative reform through New York State Department of Labor (NYS DOL) Working Groups as well as with collaborative campaigns concerning the rights of immigrant workers. These Working Groups involve a network of officials from the DOL, community-based organizations, and legal assistance providers. Working Groups address Language Access and include a joint effort with the State Workers’ Compensation Board. Through these efforts, the Workers’ Rights Program has formed a partnership with legal agencies and community-based organizations to ensure that government agencies adopt a comprehensive language access plan guaranteeing that: claimants are able to receive interpretation services, relevant forms are translated, and immigration status is not a bar to accessing agencies.

Another arm of the Working Group has worked directly with the Bureau of Immigrant Workers’ Rights, an office within the DOL aimed specifically to protect the labor rights of immigrant workers; through this entity, the NYIC and its allies have made significant strides in implementing reforms. Since the Bureau’s creation in 2007, senior officials from the DOL have been working consistently with advocates, led by the NYIC and its partners at the National Employment Law Project, to restructure its enforcement mechanisms. The agency has also adopted additional reforms, including increasing its number of bilingual investigators by 50%, committing to the recovery of full legal damages against non-compliant employers, and in direct collaboration with the NYIC, conducting targeted multi-lingual outreach in immigrant communities.

Through its campaign efforts, the Workers’ Rights Advocacy Program and its partners have also produced recommendations for the DOL in improving labor law enforcement.

CITY LEVEL
At the city level, the Program has been a leading advocate for immigrant workers through its Day Laborer Campaign. It has brought together local labor leaders and day laborer centers from across New York City including El Centro de Inmigrantes and the Latin American Workers Project, as well as the AFL-CIO, NYC Central Labor Council, and the New York Committee on Occupational Safety and Health (NYCOSH). The Campaign has begun to forge key partnerships between labor and worker centers to push New York’s City Council and the Mayor to respond strategically to NYC’s construction safety crisis, which has taken a disastrous toll on day laborers and other immigrant worker populations.

> Immigrants in the Workplace

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Wage & Hour Law/Minimum Wage Campaign

FEDERAL
Regardless of immigration status, all employees are protected by federal and state wage and hour laws. Generally, hours of work compensated include travel and waiting times, probationary period, training, and work performed at home. The Federal Labor Standards Act mandates that employers in the public and private sectors pay covered, non-exempt employees at least the federal minimum wage and overtime pay for work performed over 40 hours a week (overtime equates to 1 ½ times an employee’s regular pay rate). Currently, the federal minimum wage is set at $5.85 per hour; effective July 24, 2008, however, the minimum wage will increase to $6.55 per hour and again to $7.25 per hour on July 24, 2009. When an employee is subject to both state and federal minimum wage laws, the employee must receive the higher of the two wages. Additionally, tipped employees may be paid $2.13 per hour; employers must make up the difference if an employee’s tips plus wage does not equal the appropriate minimum wage.

STATE
According to the General Industry Minimum Wage Act, all employees in the state of New York (including most domestic workers) must currently be paid the minimum wage of $7.15 per hour.

Regulations known as wage orders adjust the hourly payment based upon specific requirements. These conditions encompass jobs in various industries, from building services to restaurants. Employers may deduct a limited amount from the minimum wage for each meal and lodging they provide for employees. Moreover, an employee’s hourly pay may be modified if the total wages combined with tips are greater than or equal to $7.15 per hour. In particular, food service workers in the restaurant and hotel industries who earn at least $2.55 per hour in tips may be paid a decreased minimum wage of $4.60 per hour.

Overtime pay is wages earned after 40 hours a week of work and is 1 ½ time the hourly minimum wage. Tipped employees earn 1½ times the minimum wage minus $2.55 in tip credits, and live-in domestic workers are entitled to the overtime rate after 44 hours of work in a week.

To view summaries of Wage Order Rates and Allowances as set by the New York State Department of Labor, select from the following industries:

Building Service
Restaurant
Hotel
Miscellaneous Industries and Occupations
Farm workers

Despite federal and state regulations, many employers frequently violate labor laws and pay workers less than the legal minimum wage. If workers are not being paid the minimum wage and overtime, they can claim unpaid minimum wages and overtime for the past six years under state law. Federal law allows workers to claim two or three years of owed back wages. Employers found to have intentionally violated employees’ rights to minimum wage and/or overtime may be ordered to pay the unpaid wages plus interest and legal fees.

Regardless of immigration status, if you have not been paid the minimum wage or overtime, you can take legal action against your employer or file a complaint at any of these agencies:

U.S. Department of Labor
26 Federal Plaza, Room 3700, New York, NY 10278
(866) 4-USWAGE | www.dol.gov

New York State Department of Labor
75 Varick Street
New York, NY 10019
(212) 775-3880 | www.labor.state.ny.us

New York State Attorney General’s Office
Labor Bureau: 120 Broadway, 26th Flr., New York, NY 10278
(212) 416-8700 | www.oag.state.ny.us
> Basic Overview of Wage & Hour Laws in NY
> $5.15 is Not Enough! Campaign to Raise the Minimum Wage

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Labor Law Enforcement Working Group
The Labor Law Enforcement Working Group brings together advocates, lawyers and organizers working to improve the enforcement of wage and hour and other labor laws that affect immigrant workers. The Working Group seeks to create a forum to bring together legal, advocacay and organizing approaches to the issue of labor law enforcement in New York State.

For more information or to get involved, contact Jackie Vimo at (212) 627-2227x239.

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Rights of Undocumented Workers

Under federal law, all workers, regardless of immigration status, have the right to be paid for time worked and in most cases overtime. Under New York state law, workers are entitled to receive workers compensation benefits when injured at the workplace and to prevailingwage

An estimated 7.2 million undocumented immigrants work in the United States. They work in a repressive world where exploitation and abuse are far too common, facing discrimination on a daily basis and laboring under dangerous conditions that lead to serious injuries or death. A 2007 report produced by the Economic Justice Project (now merged with the National Employment Law Project) of the Brennan Center for Justice found significant workplace violations in New York City, ranging from employers’ failure to pay the minimum wage and overtime to trafficking and forced labor.

However, despite the existence of employment laws, employers continue to abuse these workers and threaten to report them to Immigration and Customs Enforcement (ICE) when they oppose inhumane treatment. Undocumented workers have human rights and are subject to many of the same workplace rights as documented workers. Regardless of immigration status, federal and state labor laws protect undocumented workers, including:

*The Right to Unionize: Organizing a union is sometimes the only legal option for workers to take in order for an employer to bargain in good faith. Often times, workers look towards unions to ensure that employers do not modify rules and are held accountable to their employees if such changes are made. Furthermore, the National Labor Relations Act of 1935 (NLRA) protects all workers in the private sector to organize labor unions and participate in activities that involve the suport of their demands, including strikes and collective bargaining. It recognizes undocumented workers as employees, thus protecting them from unjust labor practices and any retaliation employers may use if workers support a union. However, the NLRA does not extend towards certain workers, including employees in the agricultural and domestic arenas, as well as supervisors and independent contractors.

If you have been threatened by your employer for exercising the right to unionize, you can file a complaint at the nearest regional office of the National Labor Relations Board:

New York City- Regional Office
26 Federal Plaza, Room 3614, New York, NY 10278-0104
(212) 264 – 0300

Buffalo- Regional Office
Niagara Center Building
130 S. Elmwood Avenue, Suite 630, Buffalo, NY 14202-2387
(716) 551 – 4931

Albany- Regional Office
Leo W. O'Brien Federal Building
Clinton Ave and N Pearl Street - Room 342, Albany, NY 12207-2350
(518) 431 – 4155

* The Right to Minimum Wage and Overtime: All workers have the right to be paid for hours of work performed. Everyone, including undocumented workers, is protected by state wage and hour laws as well as the Fair Labor Standards Act (FLSA). The FLSA mandates that minimum standards be established for both wage and overtime claims. It also includes provisions that protect all workers from being retaliated against by their employees when exercising their rights under the Act. Your employer may be considerably fined if they intentionally harass or fire you because you exercised your workplace rights. In extreme cases, your employer can be subject to jail time for any retaliation against you.

*The Right to Be Free From Discrimination: It is illegal for an employer to discriminate employees based upon race, national origin, color, religion, gender, or disability. Federal laws protect all workers, including those who are undocumented. Federal statutes prohibit such employment discrimination, including theAmericans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act, and Title VII of the Civil Rights Act.

In particular, the New York City Human Rights Law prohibits retaliation and employment discrimination, including discrimination based upon citizenship status. But in order for an employee to be protected by this City law, the place of employment must have four or more workers. The statute is inclusive of employment agencies and labor organizations, and makes it illegal for employers in New York City from stating remarks or asking questions that allude to prejudice against certain groups.

If you feel that you are being discriminated against, you should record the dates and times of the incidents as well as the names of any witnesses. You should also keep copies of relevant documents that are exchanged between you and your employer. However, before taking any legal action, you may want to consider resolving the situation by speaking with a supervisor, your union, and/or the human resources office.

If you feel that further action must be taken, you must file a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days of the last act of discrimination. If there are less than 15 employees at your place of employment, you must file with the New York State Division of Human Rights (DHR). You can file a complaint with the following agencies:

Equal Employment Opportunity Commission (EEOC)- New York District Office
33 Whitehall Street, New York, New York 10004
1-800-669-4000

New York State Division of Human Rights (DHR)- Headquarters
One Fordham Plaza, 4th Flr., Bronx, New York 10458
(718) 741-8400

New York City Commission on Human Rights (CHR)- Brooklyn Office
275 Livingston Street, 2nd Flr., Brooklyn, NY 11217
(718) 722-3130

CHR- Bronx Office
1932 Arthur Avenue, Room 203A Bronx, NY 10457
(718) 579-6900

CHR- Manhattan Office
40 Rector Street, 10th Floor, New York, NY 10006
(212) 306-5070

CHR- Queens Office
136-56 39th Avenue, 3rd Flr., Flushing, NY 11354
(718) 886-6162

CHR- Staten Island Office
60 Bay Street, 7th Flr., Staten Island, NY 10301
(718) 390-8506

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Immigrant Worker Legal Services

The Immigrant Opportunity Initiative’s (IOI) Immigrant Worker Legal Services Collaborative, coordinated by the New York Immigration Coalition, plays a vital and unique role in providing legal representation, assistance, outreach, and training to low-wage, immigrant workers across the city. It has enabled workers to:

- Recover unpaid wages
- Assert anti-discrimination claims
- Receive unemployment insurance benefits

The Immigrant Opportunity Initiative’s (IOI) Immigrant Worker Legal Services Collaborative operates under the premise that community-based legal services are essential for the protection of immigrant workers. Partnerships between large, citywide, legal service organizations and local community groups allow community groups to serve as triage clinics to help immigrants with basic, routine legal issues, while citywide legal service providers take on cases that require greater legal expertise.

Through the efforts of the these organizations, IOI has:

- Trained 2,000 immigrants on Wage-and-Hour Laws, Unemployment Insurance, and
Workers’ Compensation
- Handled 600 legal immigrants claims
- Recovered nearly $1,000,000 in unpaid wages

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Unemployment Insurance

The New York State Unemployment Insurance Program (UI) supports people who are unemployed and cannot find sufficient work, and are qualified to receive benefits by state eligibility requirements. UI provides temporary financial assistance by paying individuals about half as much as the job lost, up to $405 per week for up to 26 weeks.

To qualify, individuals must have worked as an employee during a minimal of two calendar quarters in the past year and a half, with at least $1,600 in earnings in one. Also, total wages paid in the base period must be 1.5 times the high quarter wages. Individuals also must have been laid off, fired for a reason not attributed to misconduct, or quit with a reasonable explanation.

Employees who perform personal or domestic services in the home are usually covered by UI, as well as most agricultural, temporary, and seasonal laborers. Certain employees are not covered under the State UI Law; their earnings are not taxable and they cannot receive unemployment benefits. Undocumented workers may not collect UI benefits, but any payment made to them is taxable. Click here to view a comprehensive list of employment that is covered and non-covered under New York State’s UI Law.

If you had enough earnings, separated from your job for non-disqualifying reasons, and are currently willing and able to work but cannot find employment, you should apply for benefits immediately after you have been unemployed by either:

- Appling Online between Monday – Thursday, 7:30am - 7:30pm (EST); Friday, 7:30am - 5:00pm; all day Saturday; and Sunday until 7:00pm

OR

- Calling the NYS Department of Labor’s Telephone Claims Center at 1-888-209-8124 for New York State residents (or 1-877-358-5306 for out of state residents) Monday – Friday, 8:00am - 5:00pm (EST)

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Health, Safety & Workers' Compensation

Through direct advocacy with the Mayor’s office, New York City Council, and the city’s Department of Buildings (DOB), we have maintained that in order to address the escalating construction safety crisis and hazardous working conditions, these agencies must provide public support to community job centers and community groups that are uniquely positioned to reach day laborers and other immigrant workers with safety training. By assuring that workers are adequately trained, are able to communicate about workplace hazards in English, and understand their rights and options when confronted with an unsafe worksite, the city would drastically reduce the number of serious injuries and fatalities in the construction industry. At the same time, we urge city government to fund community job centers so that they will be providing shelter and safety from hardships that day laborers encounter on street corners, but also support critical services such as vocational training, English classes, know-your-rights workshops, computer literacy courses, and meaningful community interaction.

*The Right to Safe Working Conditions: The Occupational Safety and Health Act (OSHA) is the workplace health and safety law that mandates the right to a safe and hazard-free workplace for most employees (including undocumented workers) in the private sector. Under this federal statute, employees have the right to inform employers and anonymously report to the Occupational Safety and Health Administration about hazards at the workplace. Employers must rectify the hazards by the given date and be certified that the reported conditions have been adequately addressed.

New York State has an occupational safety and health program that only covers employers in the local and state public sectors, but state laws still provide that employers must sustain a non-hazardous working environment. In any case, the federal OSHA protects employees working in the private sector in New York State.

If employers retaliate against employees for exercising their rights under the Act, they may file a complaint with the any of the regional or area offices of the Administration within 30 days of the date of the incident:

U.S. Department of Labor (US DOL)- OSHA Regional Office
201 Varick Street, Room 670, New York, NY 10014
(212) 337-2378

US DOL- OSHA, Albany Area Office
401 New Karner Road, Suite 300, Albany, NY 12205
(518) 464-4338

US DOL- OSHA, Queens District Office of the Manhattan Area Office
45-17 Marathon Parkway, Little Neck, NY 11362
(718) 279-9060

US DOL- OSHA, Buffalo Area Office
130 S. Elmwood Avenue, Suite 500, Buffalo, NY 14202
(716) 551-3053

US DOL- OSHA, Long Island Area Office
1400 Old Country Road, Suite 208, Westbury, NY 11590
(516) 334-3344

US DOL- OSHA, Manhattan Area Office
201 Varick Street, Room 908, New York, NY 10014
(212) 620-3200

US DOL- OSHA, Syracuse Area Office
3300 Vickery Road, North Syracuse, NY 13212
(315) 451-0808

US DOL- OSHA, Tarrytown Area Office
660 White Plains Road, 4th Flr., Tarrytown, NY 10591
(914) 524-7510

WORKERS COMPENSATION STANDARDS
Workers' compensation is insurance that provides cash benefits and/or medical care for workers who are injured or become ill as a result of their job, and is generally paid for in full by employers. It is important that all employees receive Workers’ Compensation, but it is especially crucial that the immigrant workforce obtain these benefits. According to the U.S. Department of Labor, about 1 in 4 foreign-born men were employed in maintenance and construction occupations in 2007. These occupations usually require individuals to work in a dangerous environment that leads to serious injuries or even death, and nearly 70% of workplace injuries and fatalities are attributed to immigrants. Furthermore, in a study conducted from 1996 - 2001, the Urban Institute found that the rate of fatal injuries to foreign-born workers increased by 43%, compared to the overall decrease of fatalities of U.S. workers by 5%. By New York State law, employers must provide coverage for all their employees. Workers who are injured on the job are entitled to receive paid medical care even though their employer may not carry insurance. Although most immigrant workers (both documented and undocumented) are qualified to receive Workers’ Compensation, their employers commonly fail to carry Workers’ Compensation coverage. Among other violations committed, employers in New York City were found to have fired workers for job-related injuries. These same employers also ordered employees not to file for Workers’ Compensation claims and deceitfully informed workers that they were not eligible for benefits.

If you are hurt on the job while working, you may be eligible for Workers’ Compensation. When you are first injured, you should immediately inform your employer of the injury in person or by certified mail. It is best to inform your employer in writing and keep a copy in order to protect yourself. If you are at your employer’s office, try to find the employer’s Workers’ Compensation insurance carrier, which is supposed to be posted in an area accessible to workers.

If the injury is an emergency, seek immediate medical treatment and inform the doctor that the injury is work-related. Keep all paperwork and records documenting the injury and treatment. For non-emergency care, call the Workers’ Compensation Board for a Board-certified doctor who understands the system an can fill out the appropriate form for your (C-4 form) during the follow-up treatment. You can file a claim for workplace injuries that occurred in the past two years. There are several ways to file a Workers’ Compensation claim:

- Access the hard copy of Form C-3 from the NYS Department of Labor’s website and mail the completed form to the nearest District Office

- File Form C-3 online

- Obtain a Form C-3 (Employee Claim) at a
Customer Service Center or District Office

- Call (877) 632-4996 to have Form C-3 mailed to you
If you have any questions or concerns regarding your rights to Workers’ Compensation coverage, you can contact any of the Workers’ Compensation Board offices:

New York State
20 Park Street, Albany, NY 12207
(518) 474 – 6670

Brooklyn/Staten Island Office
111 Livingston Street, Brooklyn, NY 11201

Bronx/Manhattan Office
215 West 125th Street, New York, NY 10027

Queens Office
168-46 91st Avenue, Jamaica, NY 11432

1-800-877-1373 (for all five boroughs) | http://www.wcb.state.ny.us

> Health, Safety & Workers' Compensation

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Discrimination

Discrimination based upon language is a form of national origin discrimination because a person’s primary language corresponds to one’s place of origin. Although the basis of discrimination is relative to one’s qualifications, position, and applicability of English proficiency to job performance, employers cannot deny an individual of employment simply because of that person’s accent or way of speaking. Employers also cannot require applicants and employees to be fluent in English. Both are clear violations of Title VII of the Civil Rights Act of 1964, which protects everyone from discrimination based upon race and national origin. Furthermore, employers must be able to provide a nondiscriminatory and legitimate justification in denying individuals of employment due to English proficiency.

If you believe that you have been discriminated against based upon language ability, you can file a complaint based upon the number of employees at the workplace:

*If there are 4-14 employees at your workplace, contact

U.S. Department of Justice-Civil Rights Division
Office of Special Counsel for Immigration-Related Unfair Employment Practices
950 Pennsylvania Avenue, N.W., Washington, D.C. 20530
Main Number: (202) 616-5594
Toll Free Information Number and Worker Hotline: 1-800-255-7688, (202) 616-5525
http://www.usdoj.gov/crt/osc

* If there are 15 or more employees at your workplace, contact:

Equal Employment Opportunity Commission (EEOC)- New York District Office
33 Whitehall Street, New York, New York 10004
1-800-669-4000

> Discrimination in the Workplace

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Workforce Development

Click here to see the New York state agenda.

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Other Worker Campaigns

NEW YORK CITY

Intro 569 (Responsible Restaurant Act)
We urge Mayor Bloomberg and the City Council to enact Intro 569 (lead sponsors Eric Gioia and Rosie Mendez), which would promote labor law compliance by allowing the city discretion over issuing and revoking licenses of food service establishments that exploit and abuse their workers.

Intro 324
We urge Mayor Bloomberg and the City Council to enact Intro 324 (lead sponsor Charles Barron), which would eliminate the cap on the number of general vendor and food cart licenses made available. Street vendors contribute to the city’s economy and cultural vitality through the foods and goods they sell, but the cap placed on licenses ultimately hurt both vendors and the city. Intro 324 will lead to the creation of jobs, guaranteed regulation of vendors, and increased city revenue.

A628B/S5235 (Domestic Workers' Bill of Rights)
We urge the State Legislature and Governor Paterson to pass the Domestic Workers’ Bill of Rights, which would institute paid time off and a weekly day of rest, medical leave, health insurance, and an annual cost of living adjustment for domestic workers.

**If you or your organization would like to get involved with or collaborate on any campaigns with the Workers’ Rights Advocacy Program, please contact:

Gabriela Villareal
Immigrant Advocacy Policy Coordinator
(212) 627-2227, x 229
gvillareal@thenyic.org

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