January 8, 2024
WCB Will Partner with State, Federal Authorities to Gain Temporary Protection for Workers Exercising Their Right to File Workers' Compensation Claims
Builds on Governor Kathy Hochul's Commitment to Protecting Workers in New York State - Regardless of Immigration Status
The New York State Workers' Compensation Board (Board) has joined a wider state effort in shielding noncitizen workers from retaliation and deportation during labor disputes, an extension of the protections implemented in 2023 by the Biden administration.
Through an interagency partnership with the U.S. Department of Homeland Security (DHS), the Board will now work with noncitizen workers (including undocumented workers) and their advocates to gain temporary protection from prosecution and potential deportation, as well as the ability to work legally in the U.S., if the worker is party to a workers' compensation claim. This action will protect noncitizen workers from unscrupulous employers who threaten them with removal or other forms of retaliation for cooperating with a Board investigation or exercising their right to file a workers' compensation claim for a work-related injury or illness.
"The Board is committed to protecting all workers in New York State, including low-wage and immigrant workers who are among the most at-risk of being victimized by employer violations of the Workers' Compensation Law," said Board Chair Clarissa Rodriguez. "In meeting that commitment, we must guard against the use of immigration status as a tool for retaliation against workers asserting their legal rights."
Low-wage and immigrant workers are particularly vulnerable to exploitation in the workplace because they are often reluctant to report injuries, speak out on behalf of fellow workers who have been injured at work, or cooperate in investigations of their employers for fear of potential consequences if they do.
Under the Board's plan, the Board will submit a letter to DHS in support of any request for prosecutorial discretion including, but not limited to, deferred action or parole, as well as work authorization, on behalf of undocumented workers affected by workers' compensation employer investigations. Granting such relief is needed to assure these workers of the safety and security of cooperating with Board investigations, to combat the fear of retaliation against them, and to ensure the Board can hold employers accountable for non-compliance with the law.
More information about the deferred action process is available on the Department of Homeland Security's webpage.
Elizabeth Jordan, Co-Legal Director of Make the Road New York, said, "We strongly support the Workers' Compensation Board's participation in the Department of Homeland Security worker protection program. Immigrant workers are disproportionately injured in the workplace because of the industries in which they work and their vulnerability to exploitation. Often employers intimidate their immigrant employees to deter them from making a claim with the Board. The impact of this deterrence leads to dangerous workplaces, and the extended if not permanent removal of injured workers from the workforce."
Charlene Obernauer, Executive Director of the New York Committee for Occupational Safety and Health, said, "For too long, immigrant workers without status have been too intimidated by risks of deportation to file workers' compensation claims. This new collaboration between agencies will empower workers to stand up for their rights and get the compensation that they deserve if they're injured on the job."
Maureen Hussain, Legal Director, Worker Justice Center of New York, said, "Too often, we hear that workers have been threatened with losing their jobs if they report a workplace accident or try to take time off for an injury to heal. For immigrant workers, the stakes can be even higher, with unscrupulous employers threatening to call ICE. The Board's support of deferred action helps defang these threats, which often keep workers from asserting their rights."
The actions announced by the Board align with a series of efforts by Governor Kathy Hochul to protect and support immigrants across New York State and prevent unscrupulous employers from using removal to evade state labor laws. In May, the Governor called on the federal government to expedite work authorization for asylum seekers. In February, Governor Hochul announced the expansion of the New York State Professional Pathways for High-Skilled Immigrants Program, which helps new Americans find jobs that match their skills and experience. In October 2021, she signed legislation protecting undocumented immigrants from threats to report their immigration status.
About the Board
The Workers' Compensation Board oversees the administration of workers' compensation, disability benefits and Paid Family Leave in New York State. Its mission is to protect the rights of employees and employers by ensuring the proper delivery of benefits and by promoting compliance with the law. The Chair of the WCB has broad powers under the Workers' Compensation Law (WCL), including the authority to investigate violations of WCL §§ 52 (Effect of failure to secure compensation), WCL § 131 (Payroll records), and WCL § 213 (Non-compliance or default) by entering and inspecting any place of business at any reasonable time for the purpose of investigating employer compliance, and to issue stop-work orders on employers requiring the immediate cessation of all business operations (WCL § 141-a). The Chair's broad powers also include the authority to determine whether an employer has discriminated against an employee as to his or her employment because such employee has claimed or attempted to claim compensation from such employer or has testified or will testify in a workers' compensation proceeding, and the authority to penalize the employer and direct remedies where discrimination is found (WCL § 120).