QUESTION: Are undocumented workers entitled to any employment rights under federal law? If so, what are they? ANSWER: Some people may be surprised to learn that although undocumented workers have no legal right to employment in the United States, if they are employed, they have many of the same rights as all employees, with a few limited exceptions, even if they are in the United States illegally. In the United States, undocumented workers have no legal entitlement to employment. In fact, in 1986 Congress enacted the Immigration and Reform Control Act (IRCA) which makes it illegal for employers to knowingly hire undocumented immigrants and requires employers to take affirmative steps to confirm and attest to an employee’s status. IRCA mandates that employers verify the identity and eligibility of all new employees by requiring every new employee to present specific documents before commencing work. If a prospective employee does not present the required documents, he/she cannot legally be hired. Furthermore, IRCA makes it a crime for any person to circumvent these requirements by presenting false or altered documents for the purposes of securing employment in the United States. Likewise, IRCA imposes significant penalties, both monetary, and even criminal under certain circumstances, for knowingly hiring undocumented workers. Notwithstanding IRCA, once a person is employed, many of the same federal and state benefits and protections apply to all workers while they are working, regardless of his or her immigration status. Specifically,
- Fair Labor Standards Act (“FSLA” or “Act”) Congress first enacted the Fair Labor Standards Act in 1938. Among other things, the FLSA requires employers to pay covered employees a minimum wage and, in general, time and a half of an employee’s regular rate of pay for overtime hours worked during any given work week , as defined by the Act. The FSLA defines an employee as “any individual employed by an employer”. 29 USCS § 203(e). The Act contains no exceptions or exclusions regarding immigration status and both the Department of Labor, who administers the Act, and well- settled case law have consistently held that the FSLA applies to undocumented workers. The Department of Labor expressly states on its own website, “The Department’s Wage and Hour Division will continue to enforce the FLSA and MSPA without regard to whether an employee is documented or undocumented.” http://www.dol.gov/whd/regs/compliance/whdfs48.htm
- Migrant and Seasonal Agricultural Worker Protection Act (MSPA) – Similarly, the Department of Labor enforces the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) on behalf of all workers, whether documented or not. The MSPA requires employers and farm labor contractors to pay the wages owed to migrant or seasonal agricultural workers the wages they were promised and the right to receive the wages when the payments are due, and certain rights to receive written information regarding the details of their working conditions and freedom from unlawful pay deductions.
- Right to File a Complaint – Any employee, including any undocumented worker, is permitted file a complaint with the Wage and Hour Division (“WHD”) of the Department of Labor for violations of the FSLA or MSPA at any DOL District Office and may find the following link helpful:
- National Labor Relations Act (“NLRA”) is a federal law enforced by the National Labor Relations Board (“NLRB” or “Board”) which also provides certain rights to the undocumented employees permitting all employees, including undocumented employees the right to organize and negotiate in good faith with their employers, including the right to collectively bargain with their employees. The NRLA also provides that all employees have the right to be free from unfair labor practices which include an employer’s attempts to interfere with organizing, bargaining and either terminating or otherwise discriminating against an employee if they pursue charges against the employer for any of the unfair labor practices.
- Limitations under NLRA– In the seminal case of Hoffman Plastic Compounds, Inc. v. NLRB, No. 00-1595 (S. Ct.), the Supreme Court refused to order back pay be paid to an undocumented worker who was impermissibly laid off for trying to organize a union, contrary to the NLRA. However in this case, the terminated employee had lied and provided false documentation to obtain the job in the first place. The Court held that held that providing back pay to the undocumented worker would conflict U.S. immigration laws under IRCA which makes it a crime to present false or altered documents for the purposes of securing employment. The NLRB sought back pay for the period of time after the layoff in which the employee was unable to work. The Court concluded that back pay should not be awarded “for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud.”
QUESTION: How are undocumented workers treated under New Jersey law? ANSWER: In addition to those federal rights discussed above, New Jersey law also confers some rights on all employees, including undocumented employees. Perhaps the most significant right afforded to undocumented workers in New Jersey is the right to pursue worker’s compensation benefits under the New Jersey Worker’s Compensation Act if they suffer from work related injuries. However, because undocumented workers are not authorized to legally work in New Jersey, they are not entitled to other benefits, most notably, unemployment benefits under New Jersey law.
- Worker’s Compensation – The New Jersey Worker’s Compensation Act creates, in most cases, an exclusive remedy for employees who are injured during the course of their employment. In other words, if you are injured on the job, you must seek your remedy solely in Worker’s Compensation Court. In extremely rare cases, an intentionally injured employee can also seek damages in civil court. The same redress applies to an injured undocumented worker. New Jersey courts have held that the effect of one’s immigration status has no bearing on the injury suffered or the need, or right, to medical treatment for an injury derived during employment. It is worth noting that benefits paid under the New Jersey Worker’s Compensation Act are not government funded but rather paid for through an insurance policy maintained by the employer. By requiring the employer to bear the financial responsibility of worker’s compensation further encourages the employer to ensure workplace safety for all workers. Injured workers in New Jersey should seek lawyers experienced in workers compensation law who can help any injured employee obtain the benefits they are entitled to, even permanency benefits, regardless of immigration status.
- Unemployment Benefits – Unlike Worker’s Compensation, New Jersey Unemployment Benefits are primarily government funded and unemployment benefits are not available to undocumented workers. New Jersey has followed the rationale of the Supreme Court in Hoffman by prohibiting certain compensation to persons unlawfully in the United States for employment they have not performed and are not authorized to otherwise engage in the first place.
Disclaimer: This article is meant to be informative only and is not intended as, nor should it be construed as, legal advice. This article is meant as a general guide only and does not address all possible circumstances that could affect the rights and limitations of undocumented workers. If you are injured on the job and sustain injuries you may wish to contact an experienced attorney for legal advice, regardless of your immigration status.
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