Undocumented Employee Rights – 5 Things to Know

01/08/2018 12:52 pm ET

In a recent Pew Research Study data showed, “The U.S. civilian workforce includes 8 million unauthorized immigrants, accounting for 5% of those who were working or were unemployed and looking for work.” A valid concern for that 5% of our workforce is employee rights. Below are 5 things to know about undocumented employee rights.

1. Being paid under the table is a non-factor

Employees who are paid under the table may be told they do not qualify for overtime, breaks or other benefits such as workers compensation. Another common misconception is that if there is no payroll paper trail, unpaid wages are not recoverable. The reality is, if you are an employee, regardless of how you are paid, you are entitled to these things. If you feel you or a loved one are questioning what rights you have, contact your state bar association for a referral to an employment or worker’s compensation attorney who can review the unique circumstances and give you a proper overview of your options.

2. Undocumented employees and workers compensation

With the number of unauthorized immigrants accounting for 5% of the workforce, it’s unavoidable that some of these employees will get injured on the job. Many times out of fear of retaliation based on their immigration status, these injuries go unreported and the financial burden left on the shoulders of the employee. William H. Beaumont, an attorney who handles worker’s rights and worker’s compensation in Chicago stated, “Fear of retaliation is the number one motivator keeping these types of incidences from being reported. Many employers will use The Immigration Reform and Control Act (IRCA) to not process worker’s compensation claims for the employee since they are not authorized to work.” Beaumont also notes, “In these situations it is imperative to consult with a worker’s compensation attorney experienced with undocumented and/or unauthorized employees.”

3. Can undocumented employees file EEOC complaints?

Undocumented workers, regardless of immigration or visa status, can file complaints with the EEOC due to discrimination based on national origin, race, color, sex, age, religion, and disability. The EEOC will investigate these claims if the employer employs more than 15 employees.

4. Unemployment benefits for undocumented employees

Depending on what immigration status category an employee falls into, undocumented employees can be eligible for unemployment benefits. The undocumented employee must fulfill the same basic requirements as anyone else when it comes to being considered for unemployment. These requirements in most states are:

  • Your past wages must meet the minimum thresholds.
  • You must have become unemployed through no fault of your own, as defined by your particular state’s law.
  • You must be able to work, and be actively seeking new employment.

5. Unpaid overtime and back pay for undocumented workers

Undocumented workers are due the same protections for wages and overtime as their documented counterparts as outlined in the Fair Labor Standards Act (FLSA). Undocumented employees often face an uphill battle with employers when fighting for their due pay. If you or a loved one are facing issues with unpaid overtime, no meal breaks or not being paid the state mandatory minimum wage contact your state’s bar association to find an employment attorney experience with wage and hour disputes. Most attorneys in this practice area collect legal fees only after you have successfully been compensated.

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