Unauthorized workers possess rights under federal and state labor laws, including the entitlement to unpaid wages for work rendered. Despite their immigration status, employees are legally owed compensation for their labor. However, navigating the process of claiming unpaid wages can be complex due to concerns about immigration status. Seeking guidance from a legal professional or a labor rights organization is crucial to ensure that all workers, regardless of their immigration status, receive fair compensation for their contributions.
California labor laws are designed to protect workers, all workers, regardless of immigration status. There are over 11 million immigrants in California, representing approximately 1/4 of the entire nation’s foreign-born population. Given these numbers, it’s no surprise that not everyone has their paperwork aligned before they arrive. 1 in 10 California workers are undocumented, and still have access to workers rights under California law.
The working status of an undocumented worker is complex, but it is possible to stand up for your rights to fair pay, non-discriminatory treatment, and safe working environments without immigration repercussions. At Eldessouky Law, we believe in supporting every worker in defending their rights, and will help you stand against employers who underpay, threaten, and worse.
The Rights You Are Entitled To as an Undocumented Worker
Undocumented workers have access to almost all the same rights as citizens and workers with valid visas. In fact, you are even protected from being fired if your status is revealed if the action would be considered retaliatory or discriminatory.
According to California labor laws, Employers are required to provide fair pay, timely breaks, clean and safe working environments, and engage in non-discriminatory practices. Employers are barred from retaliation and abusive or under-handed practices.
Undocumented workers are entitled to these workers’ rights in California:
1. The Right to Fair Pay
You have the right to be paid minimum wage or greater, and to be compensated for all hours of work that you perform. This includes hours when you are on-call and not able to make other commitments, hours you are on-site and waiting for your employer after your scheduled start time, and hours you are held after the end of your official shift and not permitted to go home.
You have the right to overtime pay if your work exceeds 8 hours a day or 40 hours a week at 1.5x your normal rate and the right to be properly classified as exempt, non-exempt, or a contractor, depending on the nature of your work.
You also have the right to be paid all remaining wages on the same day of termination or within 72 hours of quitting.
2. The Right to Pay Stubs and Wage Statements
You have the right to receive official records of your pay. This can be given in the form of pay stubs, wage statements, or digital records of each paycheck. These pay records should include the information you need to pay income taxes with an Individual Taxpayer Identification Number (ITIN).
3. The Right to Rest and Meal Periods
You have the right to a 10-minute paid break every 4 hours and a 30-minute work-free unpaid break for meals every 5 hours of work. For each denied break, your employer is obligated to pay for another full hour of work at your normal rate of pay. This includes asking you to work through your meal break.
4. The Right to a Clean and Safe Work Environment
You have the right to a work environment that meets health and safety standards. You cannot be asked to work in a potentially harmful or dangerous work environment without official documentation and proper protection. You have the right to refuse to work in a hazardous environment and to report any failures to maintain workplace health and safety.
5. The Right to Work-Related Materials
You have the right to be provided with the materials required for your work. You cannot be asked to pay for a required uniform, safety gear, tools, or materials to perform your assigned work tasks.
6. The Right to Non-Discriminatory Treatment
Undocumented workers have the same protections against workplace discrimination. This includes nationality, ethnicity, religion, gender, age, sex, family status, pregnancy status, sexual orientation, and disability status.
7. The Right to a Non-Hostile Workplace
You have the right to work without being harassed or abused. This includes verbal abuse, physical assault, and sexual harassment, as well as abusive policies designed to make your work environment unpleasant or unbearable.
8. The Right to Workers’ Compensation Claims
If you are injured or made sick on the job, you have the right to file a workers’ compensation claim. You may also have access to state disability insurance.
9. The Right to Paid Family Leave
Under California law, employers are required to provide 60% – 70% of your pay for up to 6 weeks if you are caring for a seriously ill relative, known as Paid Family Leave. You have the right to claim this benefit if paired with a doctor’s note confirming the illness of your relative.
10. The Right to Discuss Wages
California recently updated workers’ rights to discuss wages without retaliation, and undocumented workers are protected by this right, as well.
11. The Right to Join a Union
Undocumented workers have the right to join a union and participate in collective bargaining without employer retaliation for union participation.
12. The Right to Report Violations and Protection from Retaliation
Lastly, you have the right to report violations and sue your employer for violating your workers’ rights, even as an undocumented worker. Furthermore, your employer is legally prohibited from retaliating against you by firing you, threatening, or calling ICE in response to your complaints.
What Law Law Protects Threats from the Employer for Undocumanted Workers
Labor Code 1019 in California prohibits unfair immigration-related practices intended to retaliate against employees exercising their rights under labor laws or local ordinances. This includes actions such as requesting unnecessary documents, misusing the E-Verify system, making false reports, or threatening to contact immigration authorities. Engaging in such practices within 90 days of an employee’s rights exercise is presumed retaliatory. Employees subjected to unfair practices have the right to bring civil actions for damages or equitable relief, and courts may order license suspensions for repeat violations. Violations encompass each incident of unfair practice, not just the number of employees involved.
Salas v. Sierra Chemical Co., 59 Cal.4th 407 (2014), is a landmark case in California labor law that addresses the rights of undocumented workers who are wrongfully terminated. The case establishes that while federal law typically bars backpay for undocumented workers, California takes a different stance by treating this issue as one of after-acquired evidence. This means that even if an employer discovers an employee’s undocumented status after termination, the employee may still be entitled to backpay. However, the case leaves some aspects unresolved, particularly regarding employers who were aware of an employee’s undocumented status all along. This decision underscores the complex interplay between federal and state laws in the realm of employment rights for undocumented workers in California.
What to Expect as an Undocumented Worker in a Workers’ Rights Lawsuit
If it comes down to suing your employer to receive the compensation you deserve for your employer’s mistreatment, the key is to work with a California employment lawyer to is dedicated to defending workers’ rights.
Together, you will build evidence proving that your employer is willfully or negligently violating California labor laws. From there, you can build a settlement claim based on the financial and personal harm caused to you by your employer’s legal violations. This may include unpaid wages and overtime, physical injury or illness from unsafe practices, or emotional distress caused by employer mistreatment.
Your lawyer will help you keep the conversation away from immigration status. They may also privately remind your employer that if they choose to reveal their awareness of your immigration status, they are only spotlighting further legal violations by either knowingly hiring and retaining undocumented workers or targeting only you among their undocumented staff.
In Rivera v. NIBCO Inc., 364 F.3d 1057, the court issued a protective order prohibiting inquiries into plaintiffs’ immigration status during the lawsuit. The order aimed to prevent chilling effects on plaintiffs’ willingness to bring civil rights claims, as revealing undocumented status could lead to criminal prosecution and deportation. This decision recognized the heightened vulnerability of undocumented workers, who may face retaliation from employers, deportation proceedings, or criminal prosecution for asserting their labor and civil rights. The court cited previous cases where employers retaliated against undocumented workers, underscoring the importance of protecting their identities during legal proceedings.
Defend Your Rights as an Undocumented Worker in California
Undocumented workers make up 1/10 of the California workforce. You are an essential part of the economy, and your rights as a worker are just as important as those with citizenship or visas. At Eldessouky Law, we believe strongly that every California worker has the right to fair pay, fair treatment, and workplace safety. We are here to defend your rights, the rights and the rights of your colleagues and fight against employers who try to take advantage of undocumented workers.If your California workers’ rights have been violated, documented or undocumented, we are here to help. Contact us to consult on your case.
