The NewStandard ceased publishing on April 27, 2007.

Immigrants Face Retaliation for Asserting Workplace Rights

by Brendan Coyne
Kari Lydersen contributed to this piece.

What might have been a simple back-wages dispute took on an uglier form when the employer retaliated against its undocumented immigrant worker.

June 1, 2006 – When undocumented immigrant Sonia Cano used legal channels to force her employer to pay the minimum wage, she was unprepared for layers of retaliation that would soon turn her life upside-down.

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Last June, Cano filed a complaint with San Francisco Office of Labor Standards Enforcement (OLSE), claiming that her employer, Si Señor Taqueria, a restaurant in San Francisco, was paying some of its employees less than the city’s minimum wage.

An investigation by the office found that Si Señor owed Cano and thirteen co-workers a total of $22,000 in back wages, according to Donna Levitt, manager of the OLSE’s minimum-wage enforcement division. The restaurant’s owners handed over the money promptly, Levitt said.

Si Señor fired Cano, however, just days after she filed the claim, beginning what appeared to be a retaliation campaign that left Cano and her husband, Carlos Barrancos Gongora, both from Oxkutzcab in Mexico’s Yucatan facing deportation by US Immigration and Customs Enforcement (ICE).

Early in the morning on December 15 last year, while Cano was embroiled in a labor-rights battle with Si Señor for wrongly firing her, ICE agents paid a visit to Gongora and Cano.

"They asked for my husband’s hands [to cuff] and said they were going to take him because they were doing an investigation," Cano told The NewStandard. "They said they got an anonymous letter that he had raped girls in Mexico before coming here."

Under an agreement with the Department of Labor, immigration authorities must carefully review cases where there is an ongoing labor-retaliation dispute.

According to ICE spokesperson Virginia Kice, immigration officials received several anonymous phone tips and an anonymous letter alleging that Gongora fled Mexico because he was wanted by authorities for child molestation. The letter, a copy of which TNS has reviewed, also asserted that Gongora had tried to molest Cano’s niece, that the two were in the country illegally and that they were " both involved with smuggling people to the US."

Agents shuffled Gongora 800 miles away to the Eloy Detention Center, a detention center for undocumented immigrants located nearly halfway between Phoenix and Tucson. There he stayed for five weeks as Cano, her lawyer and a San Francisco-based workers’ rights group called Young Workers United, fought for his release.

ICE soon found that Gongora was in fact not wanted for any crimes in Mexico. But by that time, Gongora had already been snared by the system.

Cano’s lawyer Marci Seville told TNS that almost from the start, the detainment move bore the telltale signs of employer retaliation. Seville is a law professor and director of the Women’s Employment Rights Clinic at Golden Gate University.

"It was just too coincidental," Seville said of the timing of the ICE visit. "It was so soon after Sonia filed a complaint against [the restaurant] for firing her in retaliation for her wage claim."

Catherine Ruckelshaus, litigation director of the National Employment Law Project, said immigrants are particularly vulnerable to employer harassment. "It's bad; even where employees aren't asserting their workplace rights, there's fear – well-founded – and intimidation." Cano’s case, Ruckelshaus said, "perfectly illustrates a worst-case scenario of intimidation against immigrant workers."

It took five weeks and letters from Seville and Levitt to secure Gongora’s release from Eloy as a key witness to the retaliation complaint.

Si Señor owners Salvador Guillen and Eneida Favela Coral reached a confidential settlement with Cano on retaliation and defamation claims early this month, Levitt of OLSE enforcement confirmed. A separate claim naming Guillen and Coral’s daughter, Yaneth Gomez, as the source of the anonymous letter sent to ICE is still pending, Levitt said.

It took five weeks and letters from Seville and Levitt to secure Gongora’s release from Eloy as a key witness to the retaliation complaint. He is now under an order to voluntarily depart the country. Such orders usually have a 60 day window, according to US Citizenship and Immigration Services, though Seville said the still-pending retaliation claim may afford him some extra time.

Monica Guizar, an employment-policy attorney at the National Immigrant Law Center’s Los Angeles office, noted that courts have ruled unevenly on the labor rights of undocumented immigrants. But, she said, the law is clear that ICE must take labor disputes, especially those involving retaliation, into account prior to acting.

Guizar placed the onus on immigration authorities to make sure they don’t interfere in such a dispute. "Part of that corroboration should include making sure that there is no underlying labor dispute," Guizar said. "Clearly, they did not do that in this instance."

Indeed, under an agreement struck with the Department of Labor in the late 1990s and solidified by later court rulings, immigration authorities must carefully review cases where there is an ongoing labor-retaliation dispute before proceeding with investigations.

Immigration and Customs spokesperson Kice said her agency takes allegations of child abuse "very seriously" and, in this case, the claims led ICE to move more quickly than it would on other tips. "We made it a priority because of the nature of the alleged crime and determined that the best way we could determine if they were true was by getting fingerprints and sending them to Mexico," she said.

According to Seville and Cano, Gongora has legal aid and is exploring his options. If Gongora is made to leave, Cano told TNS, she and her son will return to Mexico with him.

Cano’s status, however, is similarly in question. Seville said Cano received a notice from ICE that the agency is aware of her undocumented status, but immigration authorities have not taken further official action yet.

Once deportation proceedings begin, there are few opportunities for undocumented immigrants to avoid deportation, said Guizar.

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The NewStandard ceased publishing on April 27, 2007.


This News Article originally appeared in the June 1, 2006 edition of The NewStandard.
Brendan Coyne is a contributing journalist.

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