The Work Rights of Undocumented Workers
Authored By: Partnership for Legal Access
What are the Employment Rights of Undocumented Immigrants
· What employment rights do undocumented workers have?
With only a few exceptions, all workers - including undocumented workers have the same basic employment protections as other workers, regardless of their immigration status. Undocumented immigrants, like other workers,
· have a contract right to be paid for the work that they perform;
· have a contract right to be paid what was promised to them;
· have a right under state and federal law to be paid the minimum wage;
· have a right under federal law to be paid overtime pay;
· have a right to be paid for their work according the requirements of the Texas Payday Law;
· have a right to be paid for their work in accordance with any applicable "prevailing wage" laws;
· have a right to receive workers compensation injury payments, if they are injured on the job;
· have a right to join a union or work to organize a union.
· Why should undocumented workers have these employment rights if they are not working legally in the U.S.?
If you think about it, allowing an employer to cheat undocumented workers with impunity would not only be unfair to the undocumented worker, it would hurt our whole society including documented workers. That would actually provide an incentive for unscrupulous employers to prefer hiring undocumented immigrants, precisely so they could exploit those undocumented workers. That in turn would lower the good job opportunities, wages, and working conditions for all workers, including U.S. workers. Allowing employers to cheat undocumented workers would not only promote disrespect for the law, it would put legitimate employers at a competitive disadvantage in bidding for jobs against the exploitative employers. U.S. law has always said that an employer should not be able to get away with cheating someone, just because the person is not documented.
· What are the employment rights that undocumented workers do not have?
· Undocumented workers do not have a right to claim and receive unemployment compensation.
· Undocumented workers do not have a right to recover back wages under the National Labor Relations Act, even if they are unlawfully terminated for exercising their right to organize a union. Under the Supreme Court's Hoffman Plastic decision, undocumented workers still have a right to organize a union and there are other remedies they can pursue if the employer violates this right, but the worker cannot pursue the remedy of back wages.
· But doesn't the law prohibit employers from hiring undocumented workers?
Yes. And it also prohibits an immigrant who is undocumented (not work authorized) from using false documents or making false statements on official government employment forms in order to get hired. However, if the employer hires a worker anyway, which happens very frequently, that worker has a right to the same wage and workplace safety rights as other workers.
· What does the law require an employer to do to make sure a worker is authorized to work?
Within 3 days of hiring any worker, the employer is required to have every worker fill out a Form I-9, complete the employer parts of the form, and check to see if the worker has certain documents specified on the I-9 form (for example: a lawful permanent resident card; or a combination of a drivers' license and a social security card). The employer is required to make sure that the worker's documents "appear reasonably genuine on their face," but is not expected to have the expertise detect counterfeit documents. An employer also cannot hire a worker if the employer has actual knowledge that the worker is not work-authorized or if the employer has knowledge from which he could know the is undocumented.
· Are there regulations that protect workers who are citizens or documented immigrants from suffering discrimination by an employer who thinks they might be undocumented?
Yes. Employers cannot single out people who look or sound "foreign" for extra scrutiny or document checks. The employer must require all workers, including U.S. citizens, to go through the same I-9 verification process and treat all workers the same in checking their work authorization. In addition the worker can choose which of the documents specified on the I-9 form the worker wants to provide to prove their work-authorized status; an employer cannot ask for more or different documents than those proper documents selected by the worker. And once a worker has established his work authorization at the start of the employment, the employer cannot normally come back and keep reverifying the worker's documents.
· If an undocumented worker is hired and does end up having a claim for unpaid wages, how can the worker safely pursue the claim without putting themselves in jeopardy of having her undocumented status revealed?
Under the law, the worker does not have to say anything about her immigration status in order to bring a claim before the TWC or in a court to recover their unpaid wages. The worker's status is not relevant to her claim and the agency and the court are not supposed to ask. If the employer tries to discover the worker's status in the administrative proceeding or court, the agency or court should not allow the employer to ask. But not all agencies or courts are fully aware of the law on this point and this is understandably a nervous position for the worker to be in. It is very helpful for an undocumented worker to get the assistance of a lawyer, a legal aid office, or a knowledgeable advocate to help them bring her claim safely. If the lawyer is not familiar with the law in this area, he should consult or associate a lawyer who is. The client should be assured that everything the client tells her lawyer or law office will be kept completely confidential.