Two years after a deadly nitrogen leak at a Georgia poultry plant, a major step forward to protect immigrants who report labor abuse

THE TORCH: CONTENTS By Shelly Anand, Elizabeth Zambrana and Alessandra Stevens (Sur Legal Collaborative) and Michelle Lapointe (NILC)

January 27, 2023

Two years ago, on January 28, 2021, a tragic and entirely avoidable liquid nitrogen leak occurred at a poultry plant in Gainesville, Georgia, killing six workers. In the immediate aftermath of the tragedy, traumatized immigrants were hesitant to come forward to report what they had seen because they feared employer retaliation, including a call to local police or Immigration and Customs Enforcement (ICE) and possible deportation proceedings. Their fears were not unfounded. Gainesville is in Hall County, which has a “287(g)” agreement with ICE that assigns local law enforcement to act as immigration agents.

The Gainesville poultry tragedy did not occur in a vacuum: Immigrant workers suffer 300 more workplace deaths and 61,000 more workplace injuries each year, 37% are paid less than minimum wage, and 76% are victims of wage theft. A nationwide study found that undocumented workers are nearly twice as likely to violate the minimum wage as their U.S.-born counterparts in the same jobs. In 2020, 65% of worker deaths were attributable to immigrants, and in 2021, 727 Latin American immigrants were killed at work. These disparities may be directly related to workers' fear of reporting labor law violations—workers who are unwilling to complain about workplace safety violations due to immigration concerns are actually exposed to greater workplace hazards and higher workplace injury rates exposed. Workers who are at risk of being fired, blacklisted or deported are more reluctant than others to take the risk of advocating for their rights at work. Abusive employers routinely threaten calls to ICE and the police, implying possible deportation, to prevent immigrants from asserting their rights. These threats, in turn, scare immigrant workers into remaining silent about these abuses for fear of retaliation, being blacklisted by the local community, or risk of deportation.

Photo by VCG / Contributor

On January 13, 2023, the U.S. Department of Homeland Security (DHS) announced new guidance establishing a process for workers in labor disputes to request temporary protection from deportation. This guidance is a critical step in ensuring that immigrant workers like the Gainesville poultry workers can report serious labor violations without fear of negative immigration consequences. The ability of immigrant workers to speak out about workplace abuses is critical to holding exploitative employers accountable for their failure to comply with our nation's labor laws and improving working conditions for all workers.

The new DHS guidance creates a streamlined process for workers in labor disputes to request a deferred action order – a proven form of prosecutorial discretion that provides temporary protection from deportation and work authorization. Work authorization is critical to providing immigrant whistleblowers protection from retaliation for violating our nation's labor laws. These protections strengthen the ability of agencies such as the U.S. Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), and state and local labor departments to investigate allegations of workplace abuse and provide protection Enforce the workplace, including the right to a safe and healthy workplace without discrimination and the right to fair pay for all hours worked. A letter of support from one of these agencies is an essential part of any request for deferred action under the new policy, and requests for deferred action will be considered on a case-by-case basis.

The DHS announcement follows years of organizing by immigrant workers and advocates across the country, including in Georgia and other parts of the Deep South. Both Sur Legal Collaborative and the National Immigrant Law Center (NILC) were part of a rapid response coalition led by poultry workers and local grassroots organizers in Gainesville following the nitrogen leak. Despite their fear of retaliation, the workers bravely shared with lawyers, advocates and federal investigators details of what happened in the days leading up to the nitrogen leak and on the terrible day of the leak itself.

Because these workers spoke out, OSHA imposed more than $1 million in penalties against the four companies responsible for the nitrogen leak, the highest penalties possible under current law. Hearing this news, a worker said: “It is good that justice is being done for the death of our comrades… From now on we will no longer be silent. Anything we think is wrong we will report.”

Knowing that these brave workers came forward despite their fear of retaliation during OSHA's investigation of the nitrogen leak, our coalition joined the nationwide effort to protect these workers from some form of retaliation. After months of advocacy, Gainesville workers were among the first in the country under this administration to be granted a stay on their lawsuits.

DHS's announcement to help employment agencies and workers hold abusive employers accountable is an important step. NILC and Sur Legal Collaborative, as well as our coalition partners across the country, will continue to advocate for DHS, DOL, and the Biden Administration to do more for immigrant workers. Specifically, the DOL should delegate certification authority for U and T visas to OSHA so that the agency can issue certifications to immigrants who are victims of human trafficking and workplace crimes to assist workers in seeking more permanent immigration relief. DHS should ensure that employees granted deferred action can renew these protections and should consider requests for criminal discretion from individuals involved in civil rights litigation and private litigation. And DHS should end 287(g) agreements like the one in Hall County, which create a climate of fear in immigrant communities. Regardless, none of these measures are sufficient; Congress has yet to find a path to more permanent protections for these workers, including a process for their citizenship.