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Undocumented Workers


Rights of Undocumented Workers

You may be surprised to know that 3.5% of the United States population is made of undocumented immigrants. This number is quite large in California, which these immigrants making up an astounding 10% of the workforce! Of course, if this many undocumented immigrants are being hired, this means that there is a higher risk that many will become injured as well, right? California has created statutes that reflect upon undocumented immigrants and their rights.

You see, over the years there has been a lot of confusion about the rights of undocumented workers employed in California. However, the Department of Industrial Relations stands by its decision that all California workers, no matter what, are entitled to workplace protection. In fact, beginning on January 1, 2016, all workers must receive at least $10.00 per hour minimum wage. They are also entitled to overtime pay, to file claims if they believe the employer has violated wage laws, to file workplace safety and health complaints with OSHA, and work in an environment that is free from retaliation.

The Immigration Reform and Control Act (IRCA)

Technically, undocumented immigrants should not be entitled to the same monetary rights because they are not supposed to be legally authorized to work in the United States. According to the IRCA, heavy sanctions should apply to employers who knowingly hired unauthorized employees. In fact, violations could lead to $10,000 per employee. These same workers should also technically be denied workers’ compensation under the laws. However, state laws step in and make these rights possible.

Many state laws have made undocumented workers eligible for compensation if they are injured on the job. In many states, these workers will receive compensation because the state’s statute specifically includes undocumented employees. In California, as well as many other states such as Arizona, Colorado, Hawaii, North Carolina, Tennessee, and Texas – the state’s statutes expressly include undocumented immigrants.

Understanding Rights: Questioning the Immigrant Status

he California Department of Industrial Relations does not question workers about their immigrant status. Instead, they take many different measures like the following:

  • Process wage claims no matter what an immigrant’s status is
  • Hold hearings to recover unpaid wages and represent workers even if they are undocumented immigrants
  • Investigate undocumented workers’ retaliation complaints and file court orders if the worker was a victim to a retaliation claim
  • Vigorously enforce employment laws in California to protect workers to the best of their abilities.

Can I have a further explanation of wage and hour laws?

If you are an undocumented worker, you still have rights under wage and hour laws. These laws define how you should be paid by establishing your rights to minimum wage, overtime pay, breaks, tops, and more. Just as other workers, you may find as an undocumented worker, your hours are very similar. What if a worker wants to use your “papers” against you? The employer is not permitted to refuse to pay you. You may decide that it is in your best interest to file a wage claim. If this is the case, you should get in contact with the California Division of Labor Standards Enforcement, the U.S. Department of Labor, or sue your employer in court. These agencies can be extremely helpful and should not question you about your immigration status.

Am I really able to receive workers’ compensation benefits?

No matter what your status is, if you are injured in the workplace in California, you are eligible for workers’ compensation benefits to cover medical treatment and sometimes even lost wages. However, job retraining benefits may not be available in all cases. There are many ways in which you can take action and file a claim form if you have been injured.

What are my rights under health and safety laws?

No matter what the status, you are protected under health and safety laws. This means that you have a right to any information regarding your health and safety rights as a whole. If you believe that work is unsafe because it would create a hazard to you or a co-worker, you are legally allowed to deny it. When it comes to filing a safety claim, you are permitted to interact your concerns with the California Occupational Safety and Health Administration (OSHA). They will then investigate your health and safety claim and any possible violations.

Am I still able to organize or participate in a union?

Yes, you most certainly are. You are protected under the National Labor Relations Act (NLRA) to organize a union, elect a union, and bargain with potential employers. You are also permitted to act in ways that will help improve working conditions for all workers even if there is no union as of yet. Under NLRA, your employer is not permitted to retaliate against you.

However, you have to understand that your remedies will be limited because of your immigration status when it comes to this. If you were unlawfully fired, you will not be able to receive back pay. You will also not be able to get your job back because you do not actually have legal work authorization. You should not be questioned by the National Labor Relations Board about your immigration status if you decide to call to file a union activity claim.

Am I protected when it comes to anti-discrimination laws as an undocumented worker?

Even in the case of undocumented workers, employers are not permitted to illegally discriminateagainst anyworker. This is stated under Federal and California specific anti-discrimination laws. This means that your employer will not be able to fire you, refuse to hire you, harass you, or take another action against you based on national origin, race, color, sex, pregnancy, religion, age, or disability. However, if you are fired and you suspect it was because of discrimination, it may not be so easy to collect income that you have lost. If you file a discrimination claim, there is always the possibility that you will be eligible for some type of remedy.

I want to file a claim against my employer. Should I be aware of any risks involved with this?

Yes, there are many risks. Of course, they go hand in hand with the anti-retaliation laws and you still have protections. An employer, for instance, may threaten to report you to the Department of Homeland Security; however, this is retaliation and is an illegal way for you to lose your job.

So, to answer the burning question that many of you probably have: Yes, undocumented workers in California still have rights. However, you must understand the laws in your state regarding what employers can and cannot do. If you are an undocumented worker and you believe you are being discriminated against or just generally being denied rights, speak to an attorney today. At The RAWA Law Group, we can help you every step of the way.