EMPLOYMENT
RIGHTS OF UNDOCUMENTED WORKERS UNDER FEDERAL AND NEW JERSEY LAW
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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