Undocumented Immigrants: Do They Have Labor Law Protections?

Undocumented workers are protected by labor laws, and employers are required to provide the same rights to undocumented workers as they do to authorized workers. These rights include minimum wage, safe working conditions, collective bargaining, and freedom from unfair labor practices and discrimination. However, undocumented workers may face challenges when asserting their rights due to their immigration status, and it is important for them to seek legal advice before taking any action. While undocumented workers are generally protected from deportation during labor disputes, they may still face risks of retaliation from employers, including reports to immigration authorities. Federal and state laws provide a framework for the employment rights of undocumented workers, ensuring they are treated fairly and equitably in the workplace.

Right to minimum wage

In the United States, undocumented workers have the right to minimum wage under federal law. This is because federal labor laws apply to all employees, regardless of immigration status. The Fair Labor Standards Act (FLSA) requires employers to pay their employees a minimum wage and is enforced by the Department of Labor without regard to whether an employee is documented or undocumented.

At the state level, undocumented workers in California have the same wage and hour rights as other workers. This includes the right to minimum wage, overtime pay, breaks, tips, and other forms of wages. Similarly, in New York City, it is against the law for employers to pay workers less than the minimum wage because of their immigration status.

Despite these protections, unauthorized or undocumented immigrants are more likely to be paid below the minimum wage than other workers. This is due to lax enforcement of hiring guidelines and the independent contractor loophole, which allows undocumented workers to be hired as independent contractors. In these cases, employers can avoid legal responsibility for issuing overtime pay and protections in the case of injuries.

Undocumented workers who are paid less than the minimum wage often fear reporting unfair work practices due to the risk of employer retaliation and deportation. However, if they choose to file a wage claim, they can do so without revealing their immigration status.

Right to overtime pay

The Fair Labor Standards Act (FLSA) is a federal law that applies to all workers, including undocumented workers. Under the FLSA, undocumented workers have the right to be paid the minimum wage and overtime. This means that if an undocumented worker works more than 40 hours per week, their employer must pay them at least one-and-one-half times their regular pay rate for the extra hours worked.

Undocumented workers are protected by the FLSA regardless of their immigration status, and they can pursue lawsuits to collect unpaid wages and overtime. The FLSA's protection for undocumented workers also indirectly protects U.S. citizens. If minimum wage and overtime laws did not apply to undocumented workers, employers would be incentivized to hire them over U.S. citizens and pay them subminimum wages. By recognizing that the FLSA applies to undocumented workers, the law discourages employers from engaging in such illegal practices.

While many undocumented workers may be hesitant to bring FLSA claims due to their immigration status, it is important to note that an employee's immigration status cannot be used as a defense to an FLSA claim. Additionally, it is illegal for an employer who is claimed to have violated the FLSA to threaten the employee with deportation.

Undocumented workers who believe that they are being denied their right to overtime pay can seek help from legal organizations or private attorneys specializing in employment law and immigration law. These professionals can provide guidance on how to safely pursue claims against employers without jeopardizing their immigration status.

Right to unionize

The National Labor Relations Act (NLRA) protects the right of undocumented workers to organize a union, elect a union, and collectively bargain with employers. This right also extends to engaging in "concerted activity" to improve working conditions for all employees, even without a union. However, there are risks associated with unionizing for undocumented workers, as employers may retaliate by reporting them to immigration authorities.

The protection of the NLRA does not extend to government workers. Nevertheless, undocumented workers in the government sector can still take part in union activities, but they do so at their own risk.

Undocumented workers have played a significant role in the labor movement, particularly in the late twentieth and early twenty-first centuries. Their eagerness to unionize and challenge wage theft and other employer abuses has infused the movement with new energy. This has led to a shift in the stance of union leaders, who now champion immigrant rights instead of supporting restrictive immigration policies.

The Protecting the Right to Organize Act, or PRO Act, is a piece of legislation that aims to further protect the right of undocumented workers to organize. The bill includes penalties for employers who illegally fire or retaliate against workers, regardless of their immigration status. It seeks to empower workers to build collective power and ensure that all employees can fight for better economic conditions.

Right to freedom from discrimination

The US Constitution protects all people living in the United States, regardless of their immigration status. Most constitutional provisions apply based on personhood, not citizenship. This means that if an individual is physically present in the US, they are entitled to the protections granted by the Constitution, including the right to due process and equal protection under the law.

The Fourteenth Amendment, which uses the Due Process Clause, describes the legal obligation of all state governments to provide equal protection of the laws to all persons, regardless of immigration status. The Fifth Amendment also states that "No person shall be deprived of life, liberty, or property, without due process of law."

The Immigration and Nationality Act (INA) specifically protects undocumented workers from discrimination. The INA prohibits:

• Citizenship status discrimination in hiring, firing, or recruitment or referral for a fee.
• National origin discrimination in hiring, firing, or recruitment or referral for a fee.
• Unfair document practices in the employment eligibility verification (Form I-9) and E-Verify processes.
• Retaliation or intimidation.

Federal anti-discrimination laws protect all employees in the United States, regardless of their citizenship or work eligibility. Undocumented workers are protected as much as any other worker. Any worker whose employer has 15 or more employees is protected by federal employment discrimination laws. This includes protection under:

• Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, colour, sex, religion, and national origin.
• The Equal Pay Act of 1963 (EPA), which prohibits employers from discriminating against employees of the opposite sex performing equal work in one workplace.
• The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals aged 40 and older from employment discrimination because of age.
• Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits employment discrimination against individuals with disabilities based on their disability.

In addition, undocumented workers cannot be fired for making discrimination complaints. They are covered by federal discrimination laws, which prohibit employers from retaliating against workers who assert their legal rights.

Undocumented workers can also file an EEOC complaint against an employer for discrimination if the employer has more than 15 employees. The EEOC investigates charges of job discrimination related to an individual's national origin, race, colour, sex, age, religion, and disability, including charges filed by undocumented workers.

Undocumented workers are also entitled to workers' compensation benefits in most states.

Right to workers' compensation

In the United States, undocumented workers are foreign-born individuals who are neither permanent residents nor citizens. They are also referred to as illegal immigrants or aliens, though the term "undocumented" is preferred as it does does not criminalise the person but rather their status.

Undocumented workers are protected by labor laws and have the right to workers' compensation in most states. This is because, with a few exceptions, the federal government permits states to administer their own workers' compensation laws. At least eleven states are undecided on the issue.

In Maryland, for example, courts have held that an undocumented worker injured in the course of employment is a "covered employee" for workers' compensation. In Michigan, courts have ruled that undocumented workers are entitled to medical benefits but not disability benefits due to the commission of a crime under the Immigration Reform and Control Act (IRCA). A handful of states have denied benefits, but this number is dwindling. Wyoming's Supreme Court, for instance, held that Wyoming's workers' compensation statute includes only "legally employed" aliens.

Undocumented workers are generally eligible for workers' compensation benefits, as they are either explicitly or implicitly included in workers' compensation statutes in almost every state. However, many states may not cover COVID-19 as it is not typically the type of disease covered, or only cover the disease for first responders.

A worker would need to demonstrate that their COVID-19 infection occurred during the course and scope of employment, which would be challenging during a pandemic. They would also need to provide medical evidence to support their claim, which could be difficult to obtain.

Workers' compensation coverage can include medical testing, treatment expenses, and time-loss payments for those who cannot work due to illness or quarantine.

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