IMMIGRATION AND WAGE RIGHTS

October 23, 2015

Christopher Anderson

In our last blog, we discussed how fear often plays a large role in why employees neglect to report employer wage violations. Workers are scared that, by speaking up, they will be exposing themselves to negative retaliation at work or even being fired. Fortunately, there are laws in place that prohibit employers from taking retaliatory actions against an employee for simply defending his or her rights.

However, that fear of retaliation is often even more intense for immigrants who are working in the United States, especially those who have few English speaking skills. Immigrants are consistently targeted and victimized by employers who take advantage of their wage rights due to their perceived lack of knowledge of US wage law and oftentimes insecure status in this country.

Let’s be clear about one thing from the start: no matter what an employee’s status in this country may be — US citizen, green card holder, visa holder, worker with an overstayed visa, or undocumented worker — the same wage rights apply. Immigration status is simply irrelevant. When employees do the work here in the US, they are entitled to be paid according to the law. Period.

Many employers believe they can get away with underpaying wages or not paying overtime because they can hold a worker’s immigration status over his or her head as leverage to prevent them from seeking legal recourse. However, immigration status has no bearing on a worker’s right to wage protections.

Furthermore, it is illegal for an employer to retaliate against an employee who has asserted his or her rights by contacting immigration authorities. Here is an excerpt of an article written by the nonprofit legal organization Equal Justice:

Courts have ruled that an employer’s reporting of workers to immigration officials can constitute retaliation, when it is done because the worker tried to enforce his or her rights. … In addition an employer who may be engaged in or considering this form of retaliation against a worker, should be encouraged to understand that the employer may in essence be reporting itself or subjecting itself to investigation, since it is the employer that is ordinarily in violation of the IRCA when an unauthorized immigrant is hired with actual or constructive knowledge.

Moreover, in most locations and under most circumstances, the Bureau of Immigration and Customs Enforcement (ICE) – which is the enforcement arm of the immigration service – will generally not respond to anonymous tips or if it believes an employer is attempting to retaliate against an employee. According to then-INS (now ICE) Special Agents Field Manual 33.14(h) (“Questioning Persons During Labor Disputes”), when the agency receives information concerning the employment of undocumented or unauthorized aliens, officials must “consider” whether the information is being provided to interfere with employees’ rights to organize or enforce other workplace rights, or whether the information is being provided to retaliate against employees who attempt to vindicate those rights.

Specifically, this Field Manual section requires immigration authorities to obtain the name of the informant, whether there is a labor dispute in progress, whether they are employed at the site or by a union representing workers at the site, whether they are or were employed as a manager or supervisor at the site or are related to anyone who is and whether there are pending grievances, charges or complaints at the worksite. The INS (now ICE) is also directed to inquire about how the informant obtained information regarding the aliens’ alleged unlawful status and ascertain the source and reliability of that information.

If ICE determines that the information may have been provided in order to interfere with employees’ rights or to retaliate against them for the exercise of those rights, “no action should be taken on this information without the review of District Counsel and approval of the Assistant District Director for Investigations or an Assistant Chief Patrol.”

What does all this mean? It means that, no matter your immigration status in this country, if you work in the US and your rights have been violated, you are legally entitled to take action against your employer without fear that your actions will impact your immigration status.

We at AndersonDodson are fiercely opposed to employers who play off the fears of foreign-born workers in order to take advantage of their rights. We work hard to take proactive measures that will ensure your immigration status is never even a subject of conversation when you take action to assert your wage rights. You work far too hard to allow your employer to take advantage of your rights, no matter your immigration status, so please contact AndersonDodson today and let us help you fight to recover what you are rightfully owed.