A recent amendment to New York’s Labor Law prohibits employers from retaliating against employees by threatening to or reporting them to immigration authorities. The new immigration retaliation prohibition relates to any efforts by an employee to exercise rights under the state’s extensive Labor Law protections. The amendment will take effect beginning October 25, 2019.

Who Will Be Protected?

The retaliation protections take effect once an employee has done any of the following:

• Made a complaint that the employer has violated the NY Labor Law;
• Is believed by their employer to have made such a complaint;
• Pursued a NY Labor Law proceeding;
• Testified or prepared to testify in a NY Labor Law investigation or proceeding; or
• Been the subject of an adverse finding against their employer.

Employees do not have to reference the Labor Law or any of its specific provisions to qualify for protection from retaliation. But they must make reasonable, good faith allegations.

Existing Retaliation Prohibition

Before the amendment, Section 215 of the NY Labor Law protected employees from retaliation in the above situations. The protections are vague, but widespread. They prohibit employers from doing any of the following to an employee based on protected activity:

• Discharging;
• Threatening;
• Penalizing; or
• “In any other manner” discriminating or retaliating against a protected employee.

New Immigration Retaliation Protection

The immigration retaliation amendment adds unique specific clarification of the general prohibitions above.

The amendment provides that retaliation includes “threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.”

These actions arguably already violated the existing anti-retaliation provisions of the NY Labor Law. But this amendment provides clear guidance to employers not to pursue this path in response to protected activity.

What Does This Mean for New York Employers?

From a retaliation law perspective, this amendment is not groundbreaking. Threatening to report an employee to immigration authorities to deter complaints about labor law violations was already a risky proposition. But that might not have been obvious to everyone. So this should be a clear lesson of how not to try to avoid liability for not paying minimum wages, overtime, or otherwise following the state labor laws.

However, this legislation does not mean that employers can never report employees to immigration authorities. You just can’t do it in response to protected activity. Employers already have an obligation through the federal I-9 form to ensure that their employees have the right to work in the U.S. Reporting individuals that falsify that status, for example, may be permissible. But you should consult with an employment and/or immigration lawyer before doing so.

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