Do Undocumented Workers Have the Same Protection against Unfair Labor Practices That U.S. Citizens Have?
Interviewer: You mentioned undocumented immigrants. Do they have the same rights as citizens in terms of the wage and hour claims?
The Law Protects Undocumented Workers and Affords the Same Rights as Citizens
Michael: Yes. That’s also a very good question. A lot of people think that if you’re undocumented, you don’t have any rights. However, the state of the law is that even undocumented workers have rights, and undocumented workers have to be paid minimum wage and overtime, and they have the same rights that anyone else living in this country has. So a lot of people are afraid, but it is not an issue that the employer would even be allowed to bring up should the case get to trial.
Attorney Samuels Asks the Judge to Preclude Questions about a Worker’s Status during Trial
We’ve asked judges to preclude the employer from asking about their status prior to trial so that an employer can’t even try to sneak in that question. Every time that we’ve asked a judge to preclude them from mentioned the status of the employee, it’s been granted every time and it’s never come up in court.
Interviewer: Yes, because I’m sure that undocumented workers worry that they’re not citizens and that they’ll be deported?
Immigration Status Is Not Addressed during a Hearing about Unfair Labor Practices
Michael: Yes. Yes, it’s a very valid concern, but it’s just something that never materializes into anything because judges just want to hear about the wage and hour violations. They’re not interested in their status in this country, so it’s never been an issue that’s negatively impacted any of our plaintiffs or clients.
Interviewer: Would you specifically try to get any retaliation issues spelled out that the employer can’t call Immigration on them?
Attorney Samuels Can Amend a Complaint against an Employer to Include Barring Any Retaliation
Michael: We always let our clients know that if they’re still working there and any type of retaliatory action is taken against them that they need to notify us immediately. What we would do in a situation like that is we would amend our complaint to add in account for retaliation, so that gives them some peace of mind knowing that the law says that they’re not allowed to be retaliated against. But generally, the undocumented workers are the exact type of people that employers like to take advantage of because they like to play on their weakness.
They’re hoping that since somebody is undocumented, they’re not going to bring a case for fear that they’ll be deported, but luckily the law as it stands now that employer cannot retaliate against anybody, and an employer must pay everybody regardless of their status all the benefits that they’re entitled to under the Fair Labor Standards Act.
If I was undocumented, I would be afraid to bring a case, but most of our clients are not.