Immigrants' Employment Rights

This article discusses employment rights of undocumented workers. Due to the current administration'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. 

Immigrants have the same basic employment rights as other workers, regardless of their immigration status. 

Labor laws in the U.S.—including the Fair Labor Standards Act (FLSA), Occupational Health and Safety Act (OHSA), and Family Medical Leave Act (FMLA)—apply to all employees, regardless of their immigration status.  

Federal law 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 documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and  

• retaliation or intimidation. 

Federal and Texas law also prohibit employment discrimination on the basis of: 

• national origin 

• race,  

• color, and  

• religion.  

No one can be denied equal employment opportunity because of: 

• birthplace,  

• ancestry,  

• culture,  

• linguistic characteristics common to a specific ethnic group,  

• marriage or association with persons of a national origin group, 

• membership or association with specific ethnic promotion groups, 

• attendance or participation in schools, churches, temples or mosques generally associated with a national origin group, or  

• a surname associated with a national origin group.  

Rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity. 

• A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified. 

• An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently. 

• Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency. 

• Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it. 

Harassment on the basis of national origin is illegal.  

An ethnic slur or other verbal or physical conduct because of an individual’s nationality constitute harassment if they: 

• create an intimidating, hostile or offensive working environment,  

• unreasonably interfere with work performance, or 

• negatively affect an individual’s employment opportunities.  

Employers have a responsibility to maintain a workplace free of national origin harassment. Employers may be responsible for any on-the-job harassment by their agents and supervisory employees, regardless of whether the acts were authorized or specifically forbidden by the employer. 

No. Employers are legally barred from asking questions about your immigration status, immigration history, or national origin during an interview. If an employer asks you about these topics, that question violates the law, and you are not required to answer it. Instead, say that you are not required to answer the question and move on to a different topic. 

However, employers must verify the identity and employment eligibility of all employees hired after November 6, 1986. They do this by completing the Employment Eligibility Verification (I-9) Form. They must review documents showing the employee’s identity and employment authorization.  

The law prohibits employers from rejecting valid documents. Employers can’t ask for more documents—beyond what is legally required for employment eligibility verification—just because of an employee’s citizenship status or national origin. For example, an employer cannot require only individuals the employer perceives as “foreign” to verify their employment eligibility or produce specific documents (like the employee’s “green card” or Employment Authorization Documents). Employees choose which of the permitted documents they show for employment eligibility verification. As long as the document looks reasonably genuine and relates to the employee, it should be accepted.  

E-Verify is a nationwide database that employers can use to determine the employment eligibility of job applicants and prevent the unlawful employment of undocumented workers. At this point, federal law does not require all employers to use E-Verify. But many private employers, and nearly all public employers, do.   

Unless otherwise provided in an employment contract, employment in Texas is “at will.” This means an employer can fire you for any reason and at any time. Employers “at will” are not permitted to terminate an employee for illegal reasons, such as nationality. However, they can terminate your employment if you cannot produce evidence of your authorization to work legally in the U.S. 

Your ability to work lawfully in the U.S. depends on your immigration status. Naturalized citizens, lawful permanent residents, and refugees can work freely without restriction.  

All other types of immigrants must apply for an Employment Authorization Document (EAD), which is often called a work permit, before they are allowed to work. 

All immigrants with authorization to work in the U.S. may apply for a social security number and card from a local Social Security Administration office.  

Undocumented immigrants without employment authorization are not eligible for social security numbers. However, you may apply for a Taxpayer ID Number from the Internal Revenue Service, which you can use to file and track their federal income taxes. 

In Texas, you may be eligible for unemployment benefits if you are: 

• Legally residing in the U.S., 

• Authorized to work in the U.S. at the time you earned your base-period wage, when you apply for benefits, while requesting benefits, and 

• Able to satisfy the requirements of Form I-9, Employment Eligibility Verification 

To learn more and apply for unemployment compensation, visit the Texas Workforce Commission’s Unemployment Benefit Services page.  

The Texas Workers’ Compensation Act is a state law 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. 

If their employer is part of the Worker’s Compensation System, undocumented workers have the right to be compensated for injuries received on the job or job-related illnesses. Workers’ compensation covers some lost wages and medical bills resulting from work-related injuries and illnesses. 

If their employer is not 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. 

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, visit the Texas Department of Insurance Injured Employee Resources page. 

To learn more about the rights of undocumented workers, visit Employment Rights of Undocumented Workers. 

To learn more about immigrants’ employment rights, visit Fact Sheet: Immigrants' Employment Rights under Federal Anti-Discrimination Laws on the U.S. Equal Employment Opportunity Commission website or the Immigration page on the U.S. Department of Labor website.  

To learn about filing an employment discrimination charge, visit  the U.S. Department of Justice website or the How to Submit an Employment Discrimination Complaint page on the Texas Workforce Commission website.  If you believe your employer is violating labor laws, you have the right to file a complaint with the Department of Labor. 

This article discusses employment rights of undocumented workers. Due to the current administration'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.