Between Enforcement and Protection: What Employers Need to Know About State and Federal Immigration Policy Shifts

The U.S. Department of Labor’s Wage and Hour Division recently announced a suspension in enforcing the 2024 rule from the Biden Administration that is designed to enhance protections for H-2A workers.  The move aims to provide greater clarity for agricultural employers who rely on the H-2A program and also signals a shift in how the federal government is currently administering labor and immigration standards.  

This policy change comes amid greater immigration enforcement efforts, including worksite inspections and removal proceedings.  In this environment, some employers may respond by adopting overly cautious or restrictive practices that may inadvertently compromise the rights of both documented and undocumented workers.

E-Verify

In addition, there is growing tension between federal and state government approaches to the use of E-Verify, a voluntary federal program established as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  E-Verify is administered by the U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA) and allows employers to verify the employment status of the employees they hire.  

While the federal government does not mandate use of the E-Verify program, Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, Tennessee and Utah have established their own rules governing how employers may access and use the system.  Other states, like Florida, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, Texas and Virginia, have laws requiring the use of E-Verify as a condition of receiving and performing public contracts.  

E-Verify use and rules have always varied among states. But Democrat-led states are now moving to clarify guidelines on E-Verify usage.  For example, in Illinois, lawmakers are considering legislation to expand existing restrictions on E-Verify use.

Immigrant-Friendly Workplace Laws

In response to DOL’s suspension of the rule to enhance protections for H-2A workers, Democratic policymakers are taking steps to reinforce immigrant-friendly workplace laws as a counterweight against the Trump Administration’s deportation campaign.  For example,  a new Washington state law (SB 5104) effective July 1, prohibits employers from using threats related to employees’ immigration status to deter complaints about wage underpayment, discrimination, or other labor violations.  And California’s Labor Commissioner Lilia Garcia-Brower recently issued memos reminding employers and workers that the state’s workplace laws apply to all workers regardless of their immigration status. 

In fact, some states are explicitly recognizing immigration status as a protected characteristic under state law.  These measures are designed to ensure that all workers—regardless of their immigration status—are protected from abuse, unsafe conditions, and unlawful retaliation when they assert their rights in the workplace.

Washington’s new law, entitled Employee Immigration Status Coercion, amends RCW 49.46.010 and allows “a worker who believes the worker was subject to coercion by the worker's employer based on the worker's immigration status [to] file a complaint with the department within 180 days of the alleged coercive action.”  

Many states have historically prohibited employment discrimination for a wide range of protected characteristics.  For example, the Louisiana Employment Discrimination Law, La. R.S. 23:332(A) expressly prohibits discrimination against any individual with respect to compensation, or terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, national origin, or natural, protective, or cultural hairstyle.  More states are now specifically adding immigration status to the list of protected characteristics, reflecting a growing awareness of the unique vulnerabilities faced by immigrant workers.

These protections are timely. With the return of worksite raids and more aggressive immigration enforcement, some employers may attempt to use immigration-related threats to intimidate or control workers. The new law aims to prevent that kind of abuse and ensure that all employees are treated fairly, regardless of their immigration status.

Employers must be mindful of anti-retaliation laws and the risk of employment-based lawsuits related to immigration status. This risk is present even with undocumented workers, as lack of employment authorization simply does not negate a person’s right to fair treatment.  State legislatures are moving to protect workers from retaliation for reporting unsafe or unfair conditions. 

Immigration-Based Retaliation Protections Are Emerging as a Distinct Cause of Action

Washington’s law, like a similar measure New Jersey enacted on August 8, 2024, to revise Title 34 of the New Jersey Revised Statutes, is a more expansive, proactive version of anti-retaliation protections.  Keep in mind, Title VII of the Civil Rights Act of 1964 does not explicitly mention immigration status.  See 42 U.S.C. 2000e.  Instead, Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.

The Equal Employment Opportunity Commission (EEOC) has clarified that discrimination based on national origin also includes biases related to ethnicity or accent. These new state laws build on these protections by barring workplace discrimination based on citizenship or immigration status.

Evolving State Laws Create Ambiguity in Immigration Compliance

Even when employers adhere to best practices for complying with immigration laws, differences between federal regulations and state laws can complicate their efforts. The Ohio Senate recently passed Senate Bill 172, sponsored by State Senator Kristina Roegner (R-Hudson), that specifies that persons who are unlawfully in the United States are not immune to arrest.  Senate Bill 172 prohibits public officials from:

• Obstructing or otherwise interfering, directly or indirectly, with a federal, state, or local law enforcement agency or officer who is arresting or detaining a person under the bill.
• Prohibiting any person from inquiring or providing information about an individual’s citizenship or immigration status, release date, or other personal identifying information in furtherance of an immigration enforcement action.
• Prohibiting any person from otherwise aiding or cooperating with a federal, state, or local law enforcement agency or officer in arresting or detaining a person under the bill.
• Seeking or imposing any form of civil or criminal liability or penalty against any person acting in good faith under the bill on the ground that the person violated any rule, ordinance, resolution, policy, directive, or other action that conflicts with the bill.

State-level immigration laws increasingly require employers to navigate both federal and state-specific enforcement mechanisms. For businesses operating across multiple states, this means understanding the legal landscape in each jurisdiction. Many state laws have emerged in response to federal enforcement priorities but may not always align neatly with the federal Immigration and Nationality Act (INA), thereby creating complex compliance challenges.

Employers should remember that while the federal government focuses on enforcing employment violations, the U.S. Department of Labor continues to protect  workers’ legal rights, irrespective of their immigration status.

Please contact Brandon Davis or any member of the Phelps Immigration and Labor and Employment teams if you have questions or need advice or guidance.