The Rights and Challenges of Undocumented Workers

A note from the dramaturg: 

In Real Women Have Curves all the characters but Estela have their Green Cards but the memory of being undocumented clearly weighs on all the other characters who only recently have received the “protections” of documentation.  For Estela, her initial inability to stand up to her boss at Bloomingdale’s is clearly influenced by her fear of being deported. Below is a description of some of the rights and challenges of being an undocumented worker. Source.

Undocumented workers generally have the same wage and hour rights as other workers.   Thus, the same Federal and California wage and hour laws that apply to authorized workers generally apply to persons working without legal immigration status. These laws establish your right to minimum wage, overtime pay, breaks, tips, and other forms of wages. For example, an employer cannot refuse to pay you by saying that you should not have been working in the first place because you have no “papers.” (However, if you have been fired because you have a wage complaint, it’s less clear whether you can recover the income you lost due to being fired.)

Health and safety laws protect all employees regardless of their immigration status. Therefore, undocumented workers have rights to information regarding their health and safety rights. They have the right to refuse unsafe work if they reasonably believe it would create a real and apparent hazard to them or their co-workers. They also can file health and safety complaints with the California Occupational Safety and Health Administration (Cal/OSHA).

Yes. If you are an undocumented worker who doesn’t work for the government, the National Labor Relations Act (NLRA) protects your right to organize a union, elect a union, and collectively bargain with employers. It also allows you to engage in “concerted activity” to improve working conditions for all employees even if there is no union yet. Concerted action occurs when two or more employees act, with their employer’s knowledge, to improve working conditions on behalf of all employees, or if one employee acts on behalf of others.

If your employer violates the NLRA by retaliating against you for your union activity or by committing another unlawful labor practice, however, your remedies will be limited because of your immigration status.  In particular, if you were unlawfully fired, you will not be entitled to “backpay” (your wages for the time you were unemployed because of the firing). Also, you will not be able to get your job back because, as an undocumented worker, you do not have legal work authorization.

Employers are required refuse to hire, or terminate, an undocumented worker once they learn of her lack of work authorization.  The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to knowingly hire or continue to employ undocumented workers. Therefore, when an employee is hired, her employer is required to ask for documents that show her identity as well as her authorization to work in the U.S., and those documents must “reasonably appear to be genuine.”

Sometimes, however, employers will fire workers using the excuse that they were undocumented, when their real reason for firing them was actually something else. For instance, an employer may say that it fired someone due to her lack of documentation because it does not want to admit it fired her because she became pregnant, is Latina, or complained about being sexually harassed. In those cases, because undocumented workers are still covered by the general laws against employment discrimination, the employer is still breaking the law because its true reason for firing the worker was illegal.

Likewise, your employer cannot use your lack of immigration status as an excuse to fire you because you complained about nonpayment of wages, a workplace injury, or tried to help organize a union in your workplace. In those cases, because undocumented workers are still covered by laws that prohibit employers from retaliating against workers who assert their legal rights, the employer is still breaking the law.

Yes. The greatest risk in filing an employment claim as an undocumented worker is that your employer may retaliate against you. Retaliation means that your employer takes or threatens to take some employment action against you, or reports or threatens to report you to ICE (“Immigration and Customs Enforcement”), an agency of  the Department of Homeland Security), because you filed a claim against the employer. Retaliation is illegal, however. In fact, employers who retaliate against you because you complained about their unlawful working conditions are breaking the law a second time.

The risk of retaliation is one faced by all employees, documented and undocumented, who raise a legal complaint against their employer. Depending on the law your complaint falls under, you can file a retaliation claim with the Federal or California agency that administers the law, or bring a lawsuit against that retaliation in court.

Worse, if you used false information or papers when you applied for your job, you may be charged criminally, fined, deported, and/or prevented from ever returning to live and work in the U.S. These serious penalties may apply even if you are married to a U.S. citizen, have U.S. citizen children, or have lived in the U.S. for many years.

If you are undocumented. the choice of whether to go ahead with a complaint against your employer is one you must make only after very careful thought, and after obtaining competent legal advice from attorneys knowledgeable about both employment law and immigration law. Many undocumented workers, given the serious possible consequences of being reported to the immigration authorities, or of having their lack of status revealed in the litigation process, quite understandably choose not to complain about their working conditions. Source.

Often, those arriving in America are treated poorly by their employers, who realize that many immigrants do not understand they have the same rights to be treated humanely and given a fair wage as native-born Americans, regardless of their legal status. According to Workplace Fairness, about 6.5 million undocumented immigrant workers currently reside in the country, many of whom face numerous types of abuse at work. These often include low pay, inhumane work hours and dangerous conditions.

Newcomers to America often face such barriers as difficulty speaking the language of their employers and co-workers, and not understanding employment laws that protect employees. They may also be afraid that they will be disciplined if they stand up for their rights. As a result, many employers take advantage of immigrants, particularly those who are not in the country legally. Often, immigrants do not receive minimum wage or are denied payment for working overtime. Their employers may deny them breaks for meals or going to the restroom. They might not be given training or safety equipment that can make their jobs safer.

Everyone, including undocumented immigrants, has the right to certain workplace protections, states the American Civil Liberties Union. Unfortunately, some employers rely on the assumption that immigrant workers do not fully understand workplace laws or fear retaliation. If workers demand fair payment and treatment, they may be "rewarded" with longer hours, having their pay withheld, denial of safety equipment or being put in positions that are hazardous. They may also be fired from their jobs without notice. In some cases, employers have threatened to call deportation authorities if their employees speak out.

No worker in America, including undocumented immigrants, should have to put up with unfair and inhumane treatment from their employers. Those who are facing such treatment or being threatened with deportation by their bosses may be able to protect their rights by speaking with an experienced Kentucky immigration attorney. Source.

Overall, immigration is good for the country in myriad ways, including its effects on the wages of most workers. But competition with lesser-skilled immigrants can be a problem for low-wage-earning native-born workers during a recession or a time of high unemployment[pdf], though the effect generally equalizes over time.

The effect is mostly felt in hard times, but it can be negated by raising the minimum wage.

The only workers whose wages are depressed in a sustained way by lesser-skilled immigration areother immigrant workers with less than a high school degree. That’s evidence we shouldn’t fear immigration, but it’s not an argument for increasing the flow of lesser-skilled, low-wage workers to the United States. The McKinsey Global Institute has projected that in 2020, relative to the number of available jobs, there may be a surplus of about six million workers with a high school degree and of almost one million workers without a high school degree. If these projections are even remotely in the ballpark, then it is highly unlikely that the United States will face labor shortages requiring less-educated, lesser-skilled immigrant workers.

The impact of unauthorized immigration on lesser-skilled native-born American workers, however, is more complicated. Unauthorized immigrants contribute to the economy in vital industries and pay billions in taxes, but it’s also true that 5 percent of the labor force is comprised of unauthorized, deportable workers who aren’t fully protected by U.S. labor laws. Unauthorized workers are often afraid to complain about unpaid wages and substandard working conditions because employers can retaliate by taking actions that can lead to their deportation. This gives employers extraordinary power to exploit and underpay them. When the immigrants’ wages are suppressed, so are the wages of U.S. workers competing for similar jobs.

This exploitation is not just theoretical. A landmark study found that 37 percent of unauthorized immigrant workers were victims of minimum wage violations. An astounding 84 percent who worked full-time were not paid time-and-a-half for overtime when they worked more than 40 hours in a week.

The bargaining power of U.S.-born workers competing in the low-wage labor market is undercut when millions of unauthorized workers cannot safely complain to the Labor Department or sue for unpaid wages.

The solution to this problem is not mass deportation or the criminalization of unauthorized immigrants. Unauthorized immigrant workers aren’t keeping wages down and conditions deplorable in lower-skilled occupations; it’s their employers. Even the largest estimated effects of low-wage immigrants on the wages of U.S.-born workers are so small that they would be more than eliminated by raising the minimum wage to $10.10 an hour, or even better, $12. And the biggest single culprit in the growth of wage inequality has been deunionization. The only way to achieve sustained wage growth is if American and immigrant workers organize and build power together through unionizing and collective bargaining.

Congress could also help native-born American workers by passing a legislative immigration reform package that legalizes all unauthorized immigrants and provides them a path to citizenship. That would allow immigrants to assert their rights, thus raising standards for everyone. Source.