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Employment Rights of Undocumented Immigrants

Generally speaking, undocumented immigrants have the same protections under labor laws as American citizens, with some minor exceptions.

Minimum Wage Laws. In addition to federal laws, each state has its own minimum wage requirements; where federal and state laws differ, the higher wage applies.

Minimum wage laws apply to all workers equally, regardless of immigration status. Minimum wages in the U.S. are primarily set by the federal government under the Fair Labor Standards Act but virtually every state has its own minimum wage law as well. Though the federal law trumps the state law, if state law mandates greater benefits, the employer must pay the higher rate.

Importantly, The FLSA makes no exception for undocumented immigrants. They’re therefore entitled the same benefits as American citizens.

Currently, the FLSA minimum wage is $7.25 per hour for non-exempt employees, and the New York minimum is the same. The minimum under Illinois law is $8.25 while the minimum in the city of Chicago is $12.00.

There are a few exceptions: for example, the minimum for waitstaff, or employees who customarily receive tips, is $5.00 per hour ($6.25 in Chicago).

Workers’ Compensation ? Whether undocumented immigrants are entitled to workers’ compensation depends on each state’s own law. In Illinois, undocumented immigrants are entitled to worker’s compensation benefits. In fact, the Illinois Appellate Court has upheld an award of total, permanent disability to an undocumented woman who fell and injured her shoulder at work. The court noted that the Illinois Workers Compensation Act defines “employee” to include “alien,” but the act does not differentiate between documented and undocumented workers.

Federal Anti-Discrimination Laws
  • The Equal Pay Act (EPA), is a federal law which prohibits wage or salary discrimination based on sex; additionally, Title VII of the Civil Rights Act prohibits employers from discriminating because of race, color, sex, religion, or national origin.
  • The Immigration and Nationality Act (INA) prohibits discrimination based on:
    • citizenship;
    • national origin;
    • retaliation or intimidation.
Can an Employer Fire a Worker if He Learns That He or She is Undocumented?

Yes! An employer must discharge an undocumented worker, because under the Immigration Reform and Control Act it is illegal to knowingly employ an undocumented worker. While this may appear to be at odds with the Immigration and Nationality Act, it is not. The INA forbids discrimination based on national origin or citizenship, but neither of those categories implies that one is in the country illegally.

Legal interpretations of these separate statutes (the INA and the EPA) sometimes seem contradictory. For example, while an employer must fire a worker who is is an illegal alien, he may not fire him for the wrong reason--say, for example, for making a discrimination complaint against the employer, or for engaging in union activities.

Though an illegal alien is entitled to recover unpaid wages, he may not recover wages for time he did not actually work. Typically, in a wrongful discharge case, a successful plaintiff/employee will recover money which he would have earned had he not been wrongfully discharged. Not so an illegal alien. The courts have held that, because he had no right to be employed in the first place, he may not recover for not working. But he has the right to recover pay (including overtime pay, if applicable) for work he actually performed.

How can an Employer Protect Himself From Unwittingly Hiring an Undocumented Worker?

An employer will be on safe ground if he carefully completes the federal Employment Eligibility Verification Form (known as the I-9) for every new hire. Submission of the form is required under federal law. A new hire is required to present to the employer facially valid documentation which verifies his/her identity and demonstrates his/her legal authorization to accept employment in the United States. The form sets forth the kind of documents that are acceptable.

Note the documents must appear facially valid; thus, if a document is later determined to be false, the employer is not accountable unless it is obviously false.

Take-away Points:
  • Laws regarding minimum wages, hours, and working conditions apply equally to undocumented immigrants.
  • Anti-discrimination statutes apply equally to undocumented immigrants.
  • It is illegal to knowingly hire an undocumented immigrant; further, it is illegal to keep on an employee once it is discovered that he/she is an undocumented immigrant.
  • Employers should scrupulously follow the instructions of the Employment Eligibility Verification Form (I-9).