According to the Pew Research Center, in 2014 there were approximately 8 million undocumented workers in the U.S. that made up 5% of the workforce. Under the Immigration Reform and Control Act (IRCA), it is illegal for an employer to knowingly hire undocumented immigrants. Employers must have potential hires fill out an I-9 form to verify if they are eligible to work in the United States. While it is possible to falsify forms, Immigration and Customs Enforcement (ICE) recommends that employers use E-Verify in order to confirm the status of a new hire.
Undocumented workers do not always know their rights and some employers take advantage of them by denying undocumented workers rights that they are entitled to. What rights do undocumented workers have when it comes to overtime? Can they file for unemployment if they are fired? Can they file for workers’ compensation if they are injured on the job? Let’s take a look at some of these issues.
WORKERS’ COMPENSATION
When an employee is injured on the job they are able to file for compensation for their injuries and time off from work due to those injuries. Since it is illegal to hire an employee who is unauthorized to work in the U.S., some employers try to make these workers feel that they cannot file a claim for workers’ compensation. When an undocumented worker is injured on the job, they may not file for workers’ compensation because they may think that they are not entitled to the coverage. They might also fear deportation if their status is discovered.
In some states, such as Texas, New York, Florida, and Utah, undocumented workers are able to file for workers’ compensation. Other states deny these workers the right to file for workers’ compensation on the grounds that they were illegally hired in the first place. States such as Arizona and Wyoming determine that they cannot claim coverage for work under a contract that they could not legally enter due to their immigration status.
Being paid in cash, or off of the books, does not mean that an employee cannot file for workers’ compensation. How pay is distributed has nothing to do with whether or not a worker can file a claim for injuries.
OVERTIME PAY
Are undocumented immigrants entitled to overtime pay? Yes, they are according to the Fair Labor Standards Act. The Fair Labor Standards act establishes the guidelines for minimum wage and overtime pay eligibility. Undocumented workers are entitled to the same benefits as documented workers. The case that set the precedent for this is Lucas vs Jerusalem Cafe, LLC. The Fair Labor Standards Act also gives undocumented workers the right to be paid at least minimum wage.
UNEMPLOYMENT
In order to qualify for unemployment insurance, all workers must have had their employment terminated “through no fault of their own.” They also must have worked enough hours or earned enough to warrant filing a claim, and they must be able to work, be available for work, and be actively looking for work. Undocumented immigrants cannot file for unemployment benefits because they are legally not able to be employed. This makes them legally unable to work. Immigrants who have been granted asylum status and those who are working in the U.S using work visas can file as long as their visa status is current and not expired.
EEOC CLAIMS
Every worker or applicant has the right to a safe workplace free from discrimination and harassment. The Equal Employment Opportunity Commission’s (EEOC) job is to enforce laws that protect all workers from discrimination in regard to race, sex, religion, nationality, age, or disability. This means that undocumented workers are able to file EEOC claims.
Depending on individual state laws, undocumented employees may have many of the same rights as documented employees. Questions regarding the rights of undocumented workers can be addressed with lawyers who specialize in employment disputes and workers’ compensation.
VOLUNTEER WORK
Undocumented immigrants are allowed do volunteer work in some instances. A school district in North Carolina recently opened up their hiring of volunteers, on a limited basis, and allowed volunteers that are undocumented to use their passports for identification. This way they could still apply as a volunteer without having a social security number. Background checks can still be run without a social security number so this makes it easier for organizations like schools and churches to use undocumented immigrants as volunteers in a limited capacity. If they are going to be working directly with children without teachers present, then more thorough background checks are usually requested.
As long as the undocumented volunteer is not paid in food, free room and board, or other goods and services, they are okay to volunteer. If no employer-employee relationship can be shown, then the volunteer is just that, a volunteer. Offering payment through goods and services to an undocumented immigrant for volunteer work would create an employer-employee relationship and the employer in this case would be in violation of laws against harboring undocumented immigrants.
UNINTENTIONAL HIRE
What should you do if you unintentionally hire an undocumented worker? You will need to collect any evidence you have that the person is undocumented and create a file with all your evidence. Include the name the employee is working under and the length of time that they have been working for you. Write a letter to U.S. Citizenship and Immigration Services giving them the information that you have collected that shows that the worker is undocumented. Be prepared to show that your organization has followed proper hiring procedures and has hired the worker unknowingly because they will need proof that it was done unwittingly. If you can show that you followed proper verification procedures then you won’t be charged with a verification violation.
Hiring undocumented workers intentionally can result in fines from $375 up to $1600 per worker. If you have been caught hiring undocumented workers before, you could be fined up to $3000 per worker and face jail time.
In all instances, know the unique rules of your state and consult legal advice from your general counsel when appropriate.
