Step up for the essential but excluded

After years spent crisscrossing the city to lift, bathe and feed elderly New Yorkers as a home health aide, Ida was suddenly jobless. When her clients canceled their appointments in March to avoid risk of exposure to COVID-19, she understood. But she also knew that without work authorization, she could not turn to unemployment insurance. Desperate for money to support her family, Ida tried picking up hours at her old job at a Midtown restaurant, but the business had shuttered. Her partner, Victor, was luckier: A nonessential construction site operating in violation of New York’s PAUSE order had offered him $500 cash for a 50-hour workweek, in violation of minimum wage and overtime laws.

He explained, “I don’t feel good about it, but what can I do? There’s nothing else for me, is there?”

As employment law attorneys, we are used to fighting uphill battles to get clients relief. Even before the pandemic, workers like Victor and Ida faced language barriers and employers’ threats to call immigration authorities if they stepped forward with claims. They had to contend with a languid court system or overburdened enforcement agencies to secure judgments against low-road employers who sometimes disappeared before we could collect.

The COVID-19 crisis has turned an already precarious situation into a nightmare. Our clients are so desperate for cash that many will accept any new job they can find, making the impossible choice between starvation and exposure to a disease that has disproportionately ravaged immigrant, black and brown communities. And yet, four months after the beginning of this crisis, New York State has failed to take action to support them.

Politicians and the public alike have hailed essential workers for their sacrifice. But this is empty praise to New York’s immigrant workers, who occupy more than 50% of such jobs in New York City and one-third of such jobs statewide. They were essential long before COVID-19 struck, keeping our workplaces clean, laundering our clothes, building homes, caring for our children and elderly, cooking and delivering our meals. Yet these workers now suffer a double indignity, facing unprecedentedly hazardous conditions and pay violations, with little opportunity to complain. When employers lay them off, those who are undocumented or live in mixed-status households are excluded from benefits and relief.

A recent study by our organization, Make the Road New York, found that 92% of surveyed working-class immigrant households had suffered job or income loss, and only 5% received unemployment benefits. Most of our clients have been completely shut out of any of the federal relief packages passed so far, despite paying into the state’s Unemployment Insurance Trust Fund and tax coffers.

Other states and cities have taken action to ensure assistance gets to excluded workers. States like California and Oregon have developed programs to direct public funds to those who need it. None will meet the full need of this crisis, but they are a start.

Gov. Cuomo and New York’s Legislature have failed to act entirely. That must change.

State Sen. Jessica Ramos and Assemblywoman Carmen De La Rosa have introduced legislation to create the kind of fund our clients desperately need. If passed, the Excluded Workers Disaster Income Replacement Fund would raise approximately $5.5 billion through a change to how the state’s billionaires are taxed on their income. The revenue would provide direct monthly cash payments to workers ineligible for unemployment and other income replacement programs.

Cuomo may not want to ask billionaires, some of whom are his donors, to pitch in a little more to support immigrant communities. But while he fails to act, community members are going hungry, with no prospect of paying their rent. Meanwhile, health risks mount, as desperate New Yorkers are forced to venture out in search of work or food, putting families and communities in greater jeopardy.

New York must act immediately and fund excluded workers.

Leberstein and Ward are employment attorneys at Make the Road New York.