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Employment Rights of Undocumented Workers

WARNING:

This article tells you your employment rights as an undocumented worker, but due to the current administation's recent enforcement actions, you should consult with a legal aid organization or a private attorney BEFORE contacting any governmental body or taking other action in your case. 

I. What employment rights do undocumented workers have?

With only a few exceptions, all workers, including those who are undocumented, have the same basic employment rights as other workers, regardless of their immigration status. There are several different laws which provide for these rights. This section will provide a general summary of some of these laws. 

Federal Law - Fair Labor Standards Act (FLSA)

The FLSA is a federal law created by Congress to establish employment-related rights.

  • An employee, as defined in the FLSA, includes undocumented workers. In fact a federal court , in 2011, recently stated: 
    • By its terms, the Fair Labor Standards Act (FLSA) applies to any individual employed by an employer, as the term employer is defined by FLSA. The FLSA contains no exception or exclusion for persons who are not U.S. citizens or who are in this country illegally. For that reason, the courts to consider the issue have uniformly held that any person, regardless of his or her immigration status, who is employed by an employer, may pursue an action under the FLSA for work actually performed. 
  •  Key Rights Provided: 
    • Minimum Wage – Undocumented workers are entitled to be paid the minimum wage. 
    • Maximum Hours and Overtime – Undocumented workers may not work over forty hours per week unless the employer pays the employee at least one-and one-half times the regular pay rate for the extra hours worked. 
  • More Useful Information
    • The FLSA is a federal law enforced by the Department of Labor (DOL). 
    • An undocumented worker may file a complaint with the DOL’s Wage and Hour Division (WHD) by mail or in person at any WHD district office. 
    • A complaint should be filed within two years of a violation and should include the undocumented worker’s name, address and phone number, name and phone number of the employer, the type of work the undocumented worker did, and how and when the undocumented worker was paid. All services are free and confidential. Please see the following link from the United States Department of Labor for more information. 

Federal Law - National Labor Relations Act (NLRA)

  • The NLRA is another federal law that provides key rights to employees. Its chief purpose is to protect the rights of employees to organize and negotiate with their employers.
  • An employee as defined by the NLRA includes undocumented workers. 
  • Key Rights Provided:
    • Labor Organizations – Labor organizations, or unions, are made of employees or agencies representing employees. These organizations deal with employers on matters such as wages, labor disputes, hours, grievances, and working conditions. Undocumented workers have the right to create, assist, join, or refrain from joining labor organizations, subject to certain exceptions.
    • Collective Bargaining – Collective bargaining is the process by which a labor organization negotiates terms of employment with an employer. Undocumented workers have the right to bargain collectively with employers through representatives of their own choosing.4
    • Freedom from Unfair Labor Practices – Undocumented workers have the right to be free from an employer’s unfair labor practices. Unfair labor practices include an employer’s interference with labor organizations or collective bargaining attempts, an employer’s refusal to bargain collectively (subject to exceptions), and firing or discriminating against an employee because the employee has filed charges against the employer or given testimony under the NLRA.
  • The NLRA is a federal law enforced by the National Labor Relations Board (NLRB). If an undocumented worker feels that his rights have been violated, he may file a claim against an employer or labor organization here.

Federal Law - Title VII of the Civil Rights Act of 1964 (Title VII)

  • Title VII prohibits discrimination in public accommodations and established the Commission on Equal Employment Opportunity.Among other effects, Title VII provides valuable rights and protections to employees.
  • Title VII applies to both U.S. citizens and undocumented workers.
  • Key Rights Provided:
    • Freedom from Employer Discrimination – Undocumented workers have the right to not be discriminated against with regards to hiring, firing, compensation, and terms of employment based on their race, color, sex, religion, or national origin.
    • Freedom from Employment Agency Discrimination – Undocumented workers have the right to not be discriminated against by an employment agency. The employment agency cannot fire or refuse to refer for employment or otherwise discriminate against the undocumented worker because of their race, color, religion, sex, or national origin.
    • Freedom from Labor Organization Discrimination – Undocumented workers cannot be excluded or expelled from a Labor Organization because of their race, color, religion, sex or national origin.
  • Title VII is a federal law enforced by the Equal Employment Opportunity Commission (EEOC).
    • If an undocumented worker feels he has been discriminated against because of his race, color, sex, religion, or national origin, he may file a charge with the EEOC within 180 days of the alleged discriminatory act. For more information, please see the following link

Federal Law - Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

  • Undocumented workers who are also migrant or seasonal workers have rights under the MSPA.
  • Key Rights Provided:
    • Payment of Wages Promised – Undocumented workers have the right to be paid the wages they were promised.
    • Supplies – Generally, an employer cannot require the undocumented worker to purchase any goods or services solely from them as a condition of employment.
    • Written Information – Undocumented workers have the right to written information about wages and work conditions in a language they can understand as is necessary and reasonable, that details their wages and working conditions.
    • Safe Housing and Transportation, if provided – Undocumented workers have the right to safe housing and transportation if the employer provides them.
  • The MSPA is a federal law and the Wage and Hour Division of the United States Department of Labor plays a vital role in administering it. Please see the following link from the United States Department of Labor for more information.

Texas Law - Suit and Damages for Contract Liability

Undocumented workers generally have a contract right to be paid for the work they perform and to be paid what was promised to them. For example, if an undocumented worker signed a contract that promised eight dollars per hour for forty hours of work per week, and the employer did not pay the amount detailed in the contract, the undocumented worker has the right to sue for the wages he was promised. 

Texas Law -Texas Payday Law

  • Under the Texas Payday Law, private employers must pay their employees according to the standards set by the Texas Labor Code. 
  • The Texas Payday Law covers situations in which someone has hired someone else to work for pay in a scenario that resembles an employer/employee relationship as outlined in Form C-8.
    • Form C-8 is a Texas Workforce Commission worksheet that is used to determine whether a worker is an “employee” of another individual.
    • According to Form C-8, a worker is an employee if the person who hired the worker has the right to direct or control the worker, both as to the final results and as to the details of when, where, and how the work is done.
    • Form C-8 can be found here.
  • Undocumented workers are covered by the Texas Payday Law.
  • Key Rights Provided:
    • Set and Ensured Paydays – Undocumented workers have the right to set paydays by the employer.An undocumented worker generally must be paid at least once a month. If the employer does not set a payday (for example, on the last Friday of every week), the undocumented worker’s paydays become the first and fifteenth days of the month.
    • Notice of Paydays – Undocumented workers have the right to be given notice of their paydays by the employer. This notice must be posted in a place that can be clearly seen and not hidden from employees.
    • Bonuses and Commissions Paid in a Timely Manner – Undocumented workers have the right to be paid bonuses and commissions if there is an agreement to pay such bonuses and/or commissions. These payments must be made by the employer in a timely manner.
    • Payment in Proper Currency and Form – Undocumented workers have the right to be paid in U.S. currency, in either paper form, such as a check, or by an electronic transfer of funds, such as an automatic bank deposit.
    • Freedom from Wage Deductions – Undocumented workers have the right to the entirety of their payment unless the employer is ordered to deduct wages by a court or state or federal law. Also, the employee can agree, in writing, to deduct part of the wages for a lawful purpose. 
  • The Texas Payday Law is overseen by the Texas Workforce Commission. An undocumented worker wishing to file a claim must submit a wage claim form within 180 days after wages were originally due for payment. The claim must be signed and verified by a Notary Public or staff at a Workforce Solutions office. For more information, please see the following link. 

Texas Law - Texas Workers’ Compensation Act

  • The Texas Workers’ Compensation Act is a state law, within the Texas Labor Code, that provides compensation (income and medical benefits) for those employees who suffer work related injuries or illness.
  • Texas private employers are able to decide whether or not to provide worker’s compensation insurance coverage for their employees. Generally, the employer is required to notify the employee of whether or not they provide coverage. Employers who do not provide worker’s compensation coverage leave themselves more open to lawsuits from employees for injury or illness on the job. 
  • Under the Act, both citizens and non-citizens, including undocumented workers, are covered.
    • Key Rights Provided:
      • Employers that are a part of the Worker’s Compensation System:
        • Compensation for Work-Related Injuries – Undocumented workers have the right to be compensated for injuries received on the job or jobrelated illnesses. Workers’ compensation covers some lost wages and medical bills resulting from work-related injuries and illnesses.
        • Employers that are NOT a part of the Worker’s Compensation System:
          • Undocumented workers have the right to bring a personal injury lawsuit against the employer if injured on the job, if the employer is not part of the Worker’s Compensation system.
  •  The Texas Workers’ Compensation Act is regulated by the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC). An undocumented worker may file a complaint online here. For more information, please see the following link by the Texas Department of Insurance.

II. What if an employer tries to bring the undocumented worker’s immigration status into the dispute?

Department of Labor (DOL) and Immigration and Customs Enforcement (ICE) 

Key Rights Provided: 

  • Generally, undocumented workers involved in a labor dispute may not have immigration proceedings brought against them – This is because the DOL and ICE have agreed to not interfere with one another. Since all employees regardless of immigration status are protected by the employment laws of the DOL, ICE, subject to a few exceptions, may not start immigration proceedings against an undocumented worker during a labor dispute.
  • IMPORTANT: ICE may enforce immigration at the site of a pending labor dispute if:
    • The Director or Deputy Director of ICE determines enforcement is independently necessary to move forward an investigation relating to
      • National Security
      • The protection of critical infrastructure (example: power plant),
      • A federal crime other than a violation relating to unauthorized employment
      • Enforcement is directed by the Secretary of Homeland Security or requested by the Secretary of Labor or another Department of Labor official chosen by the Secretary of Labor.
  • Undocumented workers are generally protected in lawsuits from discovery of their immigration or citizenship status – This means that if an undocumented worker is involved in a labor dispute, the employer may not request that the noncitizenship status of the worker be brought into the courtroom before a judge or jury if the fact that the worker is undocumented is irrelevant to the case.
  • Additionally, a court may grant a protective order against discovery of citizenship information if such information would hurt the undocumented worker (by focusing the matter on citizenship status rather than employment rights and therefore prevent recovery).

In short, if you are an undocumented worker, you have the right to minimum wage, overtime pay, union organization and collective bargaining, freedom from unfair labor practices and discrimination, the ability to sue and recover damages for both tort and contract liability, designated and ensured paydays, bonuses and commissions, payment in U.S. currency in proper form, freedom from wage deductions, workers’ compensation, and freedom from immigration proceedings and discovery brought against you during a labor dispute.

Warning

That being said, due to the current administation's recent enforcement actions, you should consult with a legal aid organization or a private attorney BEFORE contacting any governmental body or taking other action. 

Migrant farm and reforestation undocumented workers have additional rights to written information regarding payment and working conditions, safe housing and transportation if provided by the employer, a safe workplace, and freedom from pay deductions for unlawful purposes. 

III. What rights do undocumented workers NOT have?

There are exceptions to the general rule that undocumented workers are given the same employment rights as authorized workers. This section will provide information on key rights undocumented workers do not have. 

Federal Law - Immigration Reform and Control Act (IRCA) and Hoffman Plastic

  • The IRCA was designed to prevent employers from knowingly hiring undocumented immigrants.
  • In 2002, there was a case called Hoffman Plastic in which an employer fired an undocumented employee for participating in a union.
  • Undocumented workers have a right to join and organize unions under the NLRA, so the employer was in violation of the law.
    • In this case, however, the U.S. Supreme Court found some exceptions to remedies available to undocumented workers for violations of the NLRA. 
  • Key Rights Not Provided:
    • Reinstatement –The undocumented worker generally cannot be reinstated because the law, which is designed to prevent the employment of undocumented immigrants, cannot require an employer to knowingly give the job back to the undocumented worker.
    • Back pay – Generally, back pay is money paid to make up for pay missed due to being illegally fired. Undocumented workers who have never been legally authorized to work in the U.S. are not eligible for back pay because, as the court said:
      • To award back pay to the undocumented would undermine federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.50
    • HOWEVER, an undocumented worker may recover back pay for work that has already taken place under unlawful conditions and terms.
    • ALSO, the Hoffman Plastic rule does not change the fact that undocumented workers are covered by Title VII discrimination protection. 

Texas Law - Texas Unemployment Compensation Act

  • The Texas Unemployment Compensation Act is a state statute designed to afford a working employee economic relief when he is unable to work.
  • Unemployment benefits “provide temporary, partial income replacement to qualified individuals who are unemployed through no fault of their own.”
  • Key Right Not Provided:
    • Under Texas law, undocumented workers generally do not qualify for unemployment benefits.
    • As the Texas Workforce Commission states:
      • Benefits are not payable on the basis of services performed by an alien unless the alien was lawfully admitted to the United States for permanent residence at the time such services were performed, was lawfully present for purposes of performing such services, or was permanently living in the United States under color of law at the time such services were performed.
    • The Texas Unemployment Compensation Act is a state law overseen by the Texas Workforce Commission.
    • For more information, see the following link.

In short, if an undocumented worker was hired because he gave the employer fraudulent documents (such as a fake passport or Social Security card) and is later involved in a labor dispute that results in an illegal firing, he may not recover back pay, nor , generally, may he be reinstated. Also, under Texas law, an undocumented worker, generally, may not receive unemployment benefits.

IV. What are the responsibilities of the employer?

  • Employers have a responsibility to avoid hiring undocumented workers. The IRCA prohibits employers from knowingly hiring undocumented workers and requires them to verify the work-authorization status of all employees at the time of hire.
  • To verify work-authorization status, the employer uses a form called the I-9 Employment Eligibility and Verification Form (“I-9”).
  • Key Responsibilities of the Employer:
    • The employee is required to complete the I-9 form and the employer is required to examine the completion of the I-9 form within three days at the time of hire. This form must be signed by both the employee and the employer’s authorized representative. The employer must complete this verification with all new hires, and may not single out any employee that looks or sounds “foreign.”
    • The employee should produce documents that contain both a picture of the employee and authorization to work in the U.S.Documents that have both a picture and employment eligibility include passports, Alien Registration Receipt Cards, Permanent Resident Cards, or Employment Authorization Documents. An undocumented worker may also present two documents, one of which contains a picture, such as a driver’s license or U.S. Military Card, and one showing employment eligibility, such as a Social Security Card.
    • The employee gets to choose among the documents listed in the I-9 form.66 If the employee produces the documents asked for, the employer may not request more or different documents.The employer may not also attempt to re-verify the employee or revoke his verification after that employee has successfully submitted the I-9 form unless the employee is an unauthorized worker.
    • It is unlawful for employers to, after hiring the employee according to the law, continue to employ the employee, if they KNOW the employee is or has become an unauthorized alien.
    • If an employee provides false documents, and the employer knows that the employee is undocumented but hires him anyway, both are in violation of the IRCA.
  • The I-9 form may be downloaded here.
  • For more information about the I-9 form, see the following link from U.S. Citizenship and Immigration Services.
  • If an undocumented worker feels as if he has been affected by unfair immigration-related employment practices with regards to hiring (for example, if an undocumented worker was singled out for I-9 verification or asked to provide more documents than necessary), he may file a charge with the Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel), which is overseen by the Department of Justice. A charge may be filed by mail, fax, or online. For more information about filing a charge, see the following link.

V. Why are undocumented workers protected by labor laws?

Most rights and protections guaranteed by the FLSA, NLRA, Title VII, MSPA, and relevant Texas labor laws are extended to undocumented workers even though the law prohibits employers from hiring them. If the employer hires an undocumented worker anyway, which happens very frequently, that worker generally has a right to the same protections as other workers.

  • Key Reasons Why: 
    • Employers must be held to the same standards as if they were hiring work authorized workers. If employers are not required by law to provide the same rights (minimum wage, safe working conditions, collective bargaining, etc.) to undocumented workers, they will pay those workers less, withhold overtime pay and bonuses, and refuse to improve working conditions, among other things. The undocumented workers will be exploited, and without the protection of the law they will be without remedy, while the employers unjustly benefit from cheap labor.
    • Not abiding by labor laws hurts both undocumented and work-authorized employees. If employers were able to withhold rights guaranteed by labor laws by hiring undocumented workers, they would be incentivized to hire solely those workers, and there would be fewer job opportunities, lower wages, and worse working conditions for all workers, including U.S. citizens. This is because it is easier and cheaper for an employer to hire someone willing to work for low wages and long hours. Undocumented workers likely do not know their employment rights, and out of fear of being deported they are more likely not going to raise an issue with an employer who is hiring them regardless of their citizenship status.
    • Allowing employers to treat undocumented workers differently and unfairly encourages violation of the IRCA and disrespect for the law in general. If employers are not required by law to provide their undocumented employees the same rights guaranteed to work-authorized employees, employers will be more likely to hire undocumented workers and thereby increase the problem the IRCA is trying to prevent.

VI. If an undocumented worker is hired and does end up having a claim against his employer, how can he safely pursue the claim without putting himself in jeopardy of having his undocumented status revealed?

As previously explained, an undocumented worker does not have to say anything about his immigration status in order to bring a claim against his employer.

The worker's status is not relevant to his claim, and a court will probably prohibit discovery of this information.

But not all agencies or courts are fully aware of the law on this matter, 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 or a legal aid office to help him bring his 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 he tells his lawyer or law office will be kept completely confidential. 

FINAL WARNING

This article tells you your employment rights as an undocumented worker, but due to the current administation's recent enforcement actions, you should consult with a legal aid organization or a private attorney BEFORE contacting any governmental body or taking other action in your case.