In today’s economy, it is more important than ever to get paid for the work that you do. Unfortunately, many undocumented immigrants are not given the opportunity to earn a paycheck.
This can be extremely unfair, especially if they have put in hours of work.
In this blog post, we will discuss whether or not undocumented immigrants can sue for unpaid wages. We will also cover how the law protects undocumented workers and what steps they need to take in order to prove that they did not receive any payment from their employer.
Finally, we will provide information on how to report unpaid wages.
How does the law work for undocumented workers?
Some employers hire undocumented immigrants with the misguided idea that these individuals are exempt from wage and hour laws or that they will not complain of wage and hour violations for fear of being deported.
But the law makes it clear that undocumented immigrants employed in the United States have the same rights to minimum wages and overtime pay as residents of the U.S., and they are allowed to pursue lawsuits to recover unpaid wages and overtime.
The Fair Labor Standards Act (FLSA) protects all individuals, regardless of their immigration status.
In New York, the FLSA sets a minimum wage of $15 per hour for most employees. The minimum wage in New York also applies to undocumented workers.
In addition, under the FLSA, employers must pay overtime for any hours worked over 40 per week. This overtime rate applies to both documented and undocumented employees.
Overtime pay must be at least one-and-a-half times the employee’s regular rate of pay or 1.5 times the minimum wage, whichever is higher, according to the Fair Labor Standards Act.
Time spent at the office or another location approved by the employer counts toward overtime pay.
If minimum wage and overtime regulations did not apply to undocumented immigrants, businesses would be tempted to hire them and pay them subminimum wages rather than employing U.S. citizens for full compensation.
By making it clear that the Fair Labor Standards Act (FLSA) applies to undocumented immigrants, the law discourages employers from hiring them at the expense of legal workers and law-abiding businesses in the United States.
Under the law, NYC employers are also forbidden from:
- Harassing undocumented workers because of their nationality, attire, religious belief, accent, or immigration status
- Punishing employees for speaking their own language
- Refusing to hire workers because of their nationality, attire, religious belief, or accent
- Threatening illegal workers about calling the police because of their immigration status
If a worker is mistreated or prejudiced by an employer because of their nationality, religious beliefs, accent, or immigration status, they can report the employer to the following institutions:
- The NYC Commission on Human Rights
- The U.S. Equal Employment Opportunity Commission
- The New York State Division of Human Rights
- The U.S. Department of Housing and Urban Development
- State and federal court
However, they cannot file a complaint with one agency if they have already filed a discrimination complaint with another agency based on the same facts.
An employer cannot discriminate when:
- Deciding to hire or fire an illegal worker
- Deciding what to pay them
- Making other decisions related to work, like promotions or discipline
However, it is not unlawful for an employer to refuse to hire a worker or fire them if they are not allowed to work in the United States.
Paid sick leave
If an employee works for more than 80 hours a year, they can earn up to 40 hours of safe and sick leave every year. They can use leave for themselves or care for a sick family member.
Safe and healthy workplace
Regardless of their immigrant status, every worker is entitled to a workplace free of health and safety hazards. They also have the right to get the necessary information and training about job hazards.
What happens if an undocumented worker gets hurt in the workplace?
If an undocumented worker is injured on the job, they are entitled to workers’ compensation benefits regardless of their immigration status. These benefits may include medical care and lost wages.
If an undocumented worker is injured on the job, they can file a lawsuit in civil court and recover damages. However, there are two limitations on their right to sue:
- The injury must be caused by someone other than their employer or co-worker
- The documents they submitted to get work authorization must not contain false statements knowingly made by the worker
Under the Immigration Reform and Control Act (IRCA), it is illegal for employers to knowingly hire undocumented workers and for illegal immigrants to submit false or forged identity documents to get work. As long as a worker didn’t deliberately do anything to violate the law, IRCA will not prevent them from recovering their unpaid wages.
What do undocumented immigrants need to prove unpaid wages?
In order to successfully sue for unpaid wages, undocumented immigrants need to prove that they worked and did not receive proper payment.
This can include records such as timesheets, pay stubs, emails, or other documents that prove unpaid hours. However, even if the employee does not have this proof, they can still pursue their claim based on their best recollection and estimation of their hours and pay.
How can undocumented immigrants report unpaid wages?
In order to report unpaid wages, undocumented immigrants should contact an experienced wage and hour attorney who can assess their situation and file a complaint in state or federal court if appropriate. An attorney can provide professional advice and assistance on the best way to proceed with a claim.
Undocumented immigrants are protected by law when it comes to unpaid wages. All workers, both documented and undocumented, have the right to receive fair pay for the work they do.
If undocumented immigrants believe they have unpaid wages, they should contact Cilenti & Cooper today. We treat every case with the attention and care it deserves and can fight for your rights from beginning to end. We offer a free consultation to all of our prospective clients, so you have nothing to lose.