Phone: (415) 677-9058 | Email: prk@kitchinlegal.com

Trump’s Enhancing Public Safety in the Interior of the United States Executive Order is Effectively Silencing Immigrant Crime Victims and Workers

By

Like many employment lawyers in California, I’ve represented a number of undocumented immigrant workers in lawsuits against their employers. Some of my undocumented clients had been sexually harassed, some discriminated against because of their ethnicity, and some had been denied minimum wages for performing menial work.

Of course, these clients and millions of others are working here in violation of our immigration laws. But once they enter the workplace, they are entitled to all of the legal protections guaranteed their American coworkers.  The 14th Amendment to the United States Constitution protects everyone in the United States, regardless of how or why they are here.  So any law whose purpose, or effect, is to deny workers access to the full protection of our employment laws violates the 14th Amendment.

Although I worry about the slow pace of our journey toward workplace equality, I have more immediate concerns these days.  The Trump administration’s anti-immigrant rhetoric and immigration executive order are creating barriers to the justice system for entire communities.  If you believe there is a reasonable chance that you or a family member will be deported if you file a civil complaint, or even if you call the police to report a crime, you will be less inclined to complain.  When it comes to criminal or civil justice in America, silence comes at a heavy cost.

Silencing Crime Victims

Look at what is happening in the criminal justice arena.  Less than 100 days into the Trump administration and already we are measuring its detrimental impact on crime reporting.  According to the Los Angeles Police, Latino immigrants in L.A. have suddenly become less willing to report serious crimes.  Chief Beck reported that complaints by immigrant Latinos dropped 25 percent in 2017 when compared to the same period last year.  Reports of domestic violence fell 10 percent.  Beck asked us to “imagine a young woman, imagine your daughter, your sister, your mother,” he said, “not reporting a sexual assault, because they are afraid that their family will be torn apart.”  I have imagined her choices under those circumstances and I am appalled.

Similar reports showing a strong correlation between the Trump administration’s immigration policies and a drop in crime reporting in immigrant communities are coming in from around the country. Reports of rape and domestic violence against women are chronically underreported for many reasons, including the very real fear that the criminal justice system will fail the victim.  Now, under the Trump administration, the very act of reporting any crime to law enforcement has become unbearably more dangerous for millions of immigrant families in America.

Just last month California’s Chief Justice said, “When we hear of immigration arrests and the fear of immigration arrests in our state courthouses, I am concerned that that kind of information trickles down into the community, the schools, the churches. The families and people will no longer come to court to protect themselves or cooperate or bear witness,” she said. “I am afraid that will be the end of justice and communities will be less safe and victimization will continue.”  (Chief Justice Tani G. Cantil-Sakauye’s State of the Judiciary Speech to the California legislature, 3/8/17)  As an employment attorney in California, I share these concerns.

Immigration policies that discourage individuals from reporting crime are bad for America.  They cannot be justified on the grounds they are part of broader campaign to find and deport “bad hombres.”  More crime victims, including legal residents and American citizens, will remain silent and unprotected, and more perpetrators of crime will go unpunished, because of these policies.  Whether Trump’s promised border wall is ever built, his anti-immigrant rhetoric and ICE directives have already constructed formidable barriers within America.

Silencing Employees

When those same immigration policies discourage individuals from reporting violations of employment laws, our workplaces become more dangerous too.  Imagine the conversations immigrant families across America will be having about their workplace rights in the coming years.  Workers will be forced to decide whether the risks of deportation of themselves or a family member makes it worth challenging wage theft, discrimination, harassment or workplace safety violations.  If an undocumented worker complains about the absence of a safety guard on a factory machine by filing an OSHA claim or civil lawsuit, he might be arrested and torn away from his American-born children.  If he keeps his mouth shut and his head down, he or a co-worker might only lose a hand.

In the past I have assured undocumented workers that prosecuting employment claims in court likely will not subject them to heightened ICE scrutiny.  I continue to believe this to be true today.  Although lawsuits are open to the public, they are in practice private affairs that concern only the litigants.   Employees are almost never required to step foot near the actual courthouse where their cases are pending.  Most cases settle out of court and are subject to confidentiality.  The immigration status of the employee is deemed by law to be entirely irrelevant and non-discoverable in almost every employment case.

 

Trump’s deportation directives will not change the way employment lawsuits are resolved, whether they involve citizens, legal residents or undocumented immigrants.  But his threats of deportation, coupled with stories of immigrant arrests in halls of justice across America, will make it far less likely that an undocumented immigrant will complain to anyone about working conditions.

I believe fewer immigrant workers will file employment-related claims during the Trump years, and not just those who are undocumented.  In sanctuary cities like San Francisco where I practice law, the impact is not likely to be as great as elsewhere.  In communities that support the Trump immigration agenda and accept his immigrant narrative, however, the fear of deportation is likely to keep a lot of workers quiet.  And, we know from long experience that any governmental policy designed to silence complaints about working conditions is not in our best interest.