Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On July 27, 2019, Governor Cuomo signed SB 5791 into law.
The New York State Legislature recently approved changes to state law addressing prohibited retaliation in employment, and to vehicle and traffic laws, to provide additional protections for employees or their family members regarding their citizenship or immigration status. The bill (S 1747B) amending vehicle and traffic laws was enacted last month, while the second measure (SB 5791), which seeks to protect employees from discrimination and retaliation based on immigration status, has been sent to Governor Cuomo for his expected signature.
Employment Protections
Senate Bill 5791 seeks to amend section 215 of the New York Code, which prohibits employers from firing, threatening, penalizing or otherwise discriminating against workers who report or blow the whistle on wage violations. SB 5791 expands the definition of retaliation to include contacting or threatening to contact, as well as reporting or threatening to report, an employee’s suspected citizenship or immigration status to immigration authorities.1 This revision would make it unlawful for a New York employer to threaten, penalize, or in any manner discriminate or retaliate against any employee because of his/her suspected or actual citizenship or immigration status. As noted, such actions would include threatening to contact or contacting the U.S. immigration authorities, or any federal, state, or local agency.
If enacted, this law will become effective 90 days after the governor signs it.
Traffic and Driving Protections
This potential change to New York employment law comes on the heels of a related development: on June 17, Governor Cuomo signed S 1747B, allowing any individual to apply for a non-commercial drivers’ license or learners’ permit in New York State, regardless of their lawful presence or immigration status. This new law contains safeguards that protect against federal officials’ obtaining information from the state licensing records about undocumented individuals that could lead to deportation.
New York is the 13th state (plus Washington D.C.)2 to pass such a law. Now in New York, for example, undocumented immigrants who pass a driving test will receive a driver's license, although the license is not usable for federal purposes (for example, air travel). Where there is a limitation on use for federal purposes it normally means that the license does not meet the standards for the issuance and production of a compliant identification card under the REAL ID Act of 2005 (for information on REAL ID, see http://www.dhs.gov/secure-drivers-licenses). However, it is an acceptable List B document for I-9 purposes as long as it contains a photograph or identifying information such as name, date of birth, sex, height, color of eyes, and address.
The key for employers is to be wary of being too aggressive with immigration compliance issues. It would behoove companies in New York to be mindful of how immigration status issues are addressed internally.
See Footnotes
1 The EEOC similarly interprets "retalation" in the federal civil rights statutes (Title VII, ADA, ADEA) to include such threats. See https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#A._Background (example 15).
2 The other 12 states are: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont, and Washington.
