Key points
- Under New York State Labor Law § 215, retaliating against an employee includes threatening to contact or contacting U.S. immigration authorities, or reporting or threatening to report the suspected citizenship or immigration status of the employee or of a family or household member.[1]
- New York State's whistleblower statute, Labor Law § 740, uses the same wording in its definition of retaliatory action, and that definition covers employees and former employees.[2][3]
- Under federal law, the EEOC's guidance lists making threats of deportation, or initiating action with immigration authorities because of protected activity, as examples of materially adverse actions.[4]
- "Citizenship or immigration status" has been a protected class under the New York State Human Rights Law since December 23, 2022, and "immigration or citizenship status" is a protected characteristic under the New York City Human Rights Law.[5][6]
- A threat is enough under the two Labor Law sections: each one covers "threatening to contact" immigration authorities as well as contacting them.[3][1]
In New York, threatening to report a worker to immigration authorities because the worker complained is named in State statutes as a form of retaliation. Under New York State Labor Law § 215 and Labor Law § 740, retaliation includes threatening to contact or contacting U.S. immigration authorities, and reporting or threatening to report the suspected citizenship or immigration status of an employee or of the employee's family or household member to a federal, state or local agency.[1][3] Under federal law, the EEOC's guidance lists threats of deportation among the acts that can be retaliation.[4]
What this page does not cover. This page covers what employers may not do and who is protected. It does not cover how any government agency handles information about a person's immigration status. A person's own immigration situation is a separate subject from employment law.
What do the two New York Labor Law sections say?
Both sections are New York State law. They differ in what kind of complaint they protect.
| Labor Law § 215 | Labor Law § 740 | |
|---|---|---|
| What complaint is protected | A complaint, to the employer, the Labor Commissioner, the Attorney General or any other person, about conduct the employee reasonably and in good faith believes violates the Labor Law.[7] | Disclosing or threatening to disclose, to a supervisor or a public body, an employer practice the employee reasonably believes violates a law, rule or regulation, or poses a substantial and specific danger to public health or safety.[8] |
| Immigration wording | Retaliation "includes" threatening to contact or contacting U.S. immigration authorities, or otherwise reporting or threatening to report the suspected citizenship or immigration status of the employee or a family or household member.[1] | "Retaliatory action" includes the same conduct, in § 740(1)(e)(iii).[3] |
| Who is protected | Employees, but not employees of the State or of a municipal subdivision or department.[7][9] | Employees, former employees, and natural persons working as independent contractors who are not themselves employers.[10] |
| Time to sue | Two years after the violation.[11] | Two years after the alleged retaliatory action was taken.[12] |
The immigration wording in Labor Law § 215 came from chapter 126 of the Laws of 2019, which the Governor signed on July 27, 2019.[1] A complaint under § 215 does not have to cite any section of the Labor Law to be protected.[13]
For each statute in full, see retaliation for wage complaints under Labor Law § 215 and New York's whistleblower law, Labor Law § 740.
Is a threat enough, or does the employer have to make the call?
Under both New York State Labor Law sections, the threat is covered. Each lists "threatening to contact or contacting" immigration authorities, and "reporting or threatening to report" suspected status.[3][1]
The wording is also not limited to federal immigration authorities. Both sections cover reporting status to a federal, state or local agency.[3][1] Both also use the word "suspected" to describe the status that is reported or threatened to be reported.[3][1]
What if the complaint was about discrimination or harassment?
A worker who complained about discrimination or harassment is protected by the retaliation clauses of the anti-discrimination laws, and each layer has its own rule.
Federal law
Title VII makes it unlawful for an employer to discriminate against an employee or applicant because the person opposed a practice Title VII forbids or took part in a Title VII proceeding.[14] The Supreme Court has held that this provision reaches beyond workplace-related or employment-related acts.[15] The EEOC's guidance lists, among possible materially adverse actions, "requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity."[4]
The EEOC's guidance includes an example. Farm workers placed by a contractor complain of sexual harassment, and a supervisor and the contractor threaten to expose their immigration status if they keep complaining. The guidance concludes that threatening to report the workers' suspected status to government authorities, or actually reporting them, is materially adverse and actionable as retaliation, and that neither the workers' undocumented status nor their placement by a staffing contractor is a defense.[16] That guidance states the agency's position and does not have the force of law.[17] Title VII itself applies only to employers with 15 or more employees.[18]
New York State Human Rights Law
The New York State Human Rights Law (NYSHRL) makes it unlawful to retaliate or discriminate against any person because that person opposed a forbidden practice, filed a complaint, testified or assisted in a proceeding, or requested a reasonable accommodation.[19] The NYSHRL covers all employers within the state.[20] The State's model sexual harassment prevention policy lists "undermining an individual's immigration status" among its examples of retaliation.[21]
Separately, "citizenship or immigration status" is itself a protected class under the NYSHRL. It was added by chapter 748 of the Laws of 2022, signed on December 23, 2022, and effective immediately.[5] The NYSHRL also makes it unlawful for an employer to subject an individual to harassment because of citizenship or immigration status.[22]
New York City Human Rights Law
In New York City, the New York City Human Rights Law (NYCHRL) forbids retaliating or discriminating "in any manner" against any person because of protected activity, and the act complained of must be reasonably likely to deter a person from engaging in protected activity.[23] The NYCHRL also makes it a separate unlawful practice to coerce, intimidate, threaten or interfere with any person in the exercise of rights the City law protects.[24]
"Immigration or citizenship status" is one of the characteristics protected in employment by the NYCHRL.[6] The City law also prohibits discrimination against a person because of the actual or perceived immigration or citizenship status of someone with whom that person has a known relationship or association.[25]
Do these protections depend on the worker's immigration status?
Several of the sources address this directly, each for its own law:
- Federal: the EEOC's guidance quotes its Compliance Manual: "Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status."[16]
- New York State: the State's model sexual harassment prevention policy states that the Human Rights Law applies to all employers in New York State and protects employees and covered individuals "regardless of immigration status."[26]
- New York City: the City's Department of Consumer and Worker Protection states, about the City's protected time off law, that it is illegal to punish or fire employees for requesting or using leave or for reporting violations, and that the right to leave applies regardless of immigration status.[27]
These statements are about who is protected. What a worker can recover in a particular case is a different question that these statements do not answer. The wider picture is in rights of undocumented and immigrant workers in New York.
Threats aimed at family or household members
Under New York State law, both Labor Law sections cover threats about "an employee's family or household member," and each refers to the Social Services Law for the meaning of that phrase.[3][1] Under federal law, the Supreme Court has recognized that an employer may violate Title VII by punishing someone close to the employee who complained, and it said that firing a close family member will almost always meet the standard for retaliation.[28] See retaliation against witnesses and family members.
What an employer may still do
Under New York State law, the NYSHRL states that nothing in it precludes verification of citizenship or immigration status where required by law, and that an adverse action based on verification is not prohibited where the law requires that action.[5]
The EEOC's guidance on federal law describes re-verification of work status as a possible retaliatory act when it is required "because of protected activity."[4] In the EEOC's example, the employers suspected that many workers were undocumented and did not attempt to verify work authorization, and then threatened to expose the workers' status if they continued to complain.[16] Under New York State's whistleblower law, it is a defense that the employer's action was predicated on grounds other than the employee's exercise of protected rights.[29]
Remedies and penalties in the New York statutes
| Law (layer) | What the statute provides |
|---|---|
| Labor Law § 215 (New York State): court action | The court may enjoin the conduct and order liquidated damages, costs and reasonable attorneys' fees, reinstatement or front pay, and lost compensation and damages. Liquidated damages are an amount of not more than $20,000.[11] |
| Labor Law § 215 (New York State): Department of Labor | The Labor Commissioner may assess a civil penalty of $1,000 to $10,000, or up to $20,000 where the employer violated the section in the preceding six years.[30] |
| Labor Law § 215 (New York State): criminal | Violating § 215(1) is a class B misdemeanor.[9] |
| Labor Law § 740 (New York State) | A court may order an injunction, reinstatement or front pay, lost wages and benefits, costs and attorney's fees, a civil penalty of up to $10,000, and punitive damages if the violation was willful, malicious or wanton.[31] |
Each amount in the table is a ceiling or a range set by New York State statute, not a forecast for any case.[11][30][31]
Filing periods under the anti-discrimination laws are not the same as the two-year Labor Law periods above.[12][11] See retaliation deadlines compared and New York employment claim deadlines.
Practical notes
- Write down the exact words used, who said them, when, and who else heard them, and keep any messages you received that contain the statement.
- Note what you had complained about beforehand, to whom, and on what date.
- Employers and managers: questions about work authorization belong in the ordinary hiring and records process, handled the same way for every worker. Threatening to report, or reporting, a worker's suspected status in response to a protected complaint is the conduct the two State Labor Law sections describe.[3][1]
Related: what counts as a retaliatory act, protected characteristics in New York and what workplace retaliation is in New York.
Common questions
Is it illegal in New York for my boss to threaten to call immigration because I complained about my pay?
Under New York State Labor Law § 215, an employer or any other person may not threaten, penalize or retaliate against an employee for complaining about conduct the employee reasonably and in good faith believes violates the Labor Law.[7] The section says retaliation includes threatening to contact or contacting U.S. immigration authorities, or reporting or threatening to report the employee's suspected citizenship or immigration status.[1] Violating that part of § 215 is a class B misdemeanor.[9]
Does it count if the threat is about my spouse or a relative and not about me?
Under New York State law, yes by the text of both Labor Law sections. Sections 215 and 740 each cover reporting or threatening to report the suspected citizenship or immigration status of "an employee's family or household member."[3][1] Both sections point to the Social Services Law for the definition of family or household member.[3][1]
Do federal discrimination laws treat an immigration threat as retaliation?
The EEOC's guidance on the federal laws it enforces says so. It gives an example in which workers who complained of sexual harassment were threatened with exposure of their immigration status, and it states that threatening to report, or actually reporting, the workers is materially adverse and actionable as retaliation.[16] The guidance adds that the workers' undocumented status is not a defense.[16] EEOC guidance does not have the force of law.[17]
Can an employer still check work authorization after an employee complains?
The New York State Human Rights Law says nothing in it precludes verification of citizenship or immigration status where required by law.[5] What the EEOC's guidance on federal law identifies as a possible retaliatory act is requiring re-verification of work status "because of protected activity."[4]
How long do I have to bring a claim over an immigration threat under the New York Labor Law?
Under New York State law, a civil action under Labor Law § 215 may be brought within two years after the violation, and that period is tolled while the Department of Labor investigates a complaint.[11] A civil action under Labor Law § 740 is to be started within two years after the alleged retaliatory action was taken.[12] Other laws have different time limits.
Sources
- N.Y. Lab. Law § 215(1)(a); L. 2019, ch. 126 (S.5791/A.5501), signed 27 July 2019 — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(1)(e) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(1)(e)(iii) — New York State Senate, Laws of New York
- EEOC Enforcement Guidance on Retaliation § II.B.2 (2016) — U.S. Equal Employment Opportunity Commission
- N.Y. Exec. Law § 292(41); L. 2022, ch. 748, § 15 — New York State Senate, Laws of New York
- N.Y.C. Admin. Code § 8-107(1)(a). — New York City Commission on Human Rights
- N.Y. Lab. Law § 215(1)(a)(i)–(vii) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(2)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(1)(c), (3) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(1)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(2)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(4)(a) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(1)(a) — New York State Senate, Laws of New York
- 42 U.S.C. § 2000e-3(a) — Legal Information Institute, Cornell Law School
- Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) — Legal Information Institute, Cornell Law School
- EEOC, Enforcement Guidance on Retaliation and Related Issues, No. 915.004, § II.B.2, Example 15 and n.134 (Aug. 25, 2016) (quoting EEOC Compliance Manual Section 2: Threshold Issues § III-A.4 (2000)) — U.S. Equal Employment Opportunity Commission
- EEOC, Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016) — U.S. Equal Employment Opportunity Commission
- 42 U.S.C. § 2000e(b) — Legal Information Institute, Cornell Law School
- N.Y. Exec. Law § 296(7) — New York State Senate, Laws of New York
- N.Y. Exec. Law § 292(5) — New York State Senate, Laws of New York
- NYS Model Sexual Harassment Prevention Policy (2023 version), p. 6, "Retaliation" — State of New York
- N.Y. Exec. Law § 296(1)(h) — New York State Senate, Laws of New York
- N.Y.C. Admin. Code § 8-107(7) — New York City Commission on Human Rights
- N.Y.C. Admin. Code § 8-107(19) — New York City Commission on Human Rights
- N.Y.C. Admin. Code § 8-107(20). — New York City Commission on Human Rights
- NYS Model Sexual Harassment Prevention Policy (2023 version), pp. 7 and 10 — State of New York
- N.Y.C. Admin. Code § 20-918; NYC DCWP, Notice of Employee Rights: Protected Time Off (rev. 02/22/2026) — City of New York
- Thompson v. North American Stainless, LP, 562 U.S. 170 (2011) — Legal Information Institute, Cornell Law School
- N.Y. Lab. Law § 740(4)(c) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 215(1)(b) — New York State Senate, Laws of New York
- N.Y. Lab. Law § 740(5)(a)–(g) — New York State Senate, Laws of New York