Why Workplace Abuse Plagues Undocumented Workers
Immigration authorities are increasingly cracking down on employers who hire undocumented workers. The most recent action was the detention of 680 immigrants at seven food processing plants in Mississippi.
These sweeping raids have consequences for the communities, the economy and the Trump Administration. In the end, they also end up making workplace conditions poor for the undocumented, as the threat of deportation strengthens employers' hands when it comes to abusing workers and retaliating against those who speak up.
Here’s a closer look at the laws surrounding workplaces and undocumented workers.
What Are the Laws About Employers And Undocumented Workers?
The bulk of U.S. immigration law can be found in the Immigration and Nationality Act, a series of complex and extensive provisions that have been amended and changed over the decades. One of the more prominent additions was the Immigration Reform and Control Act of 1986, which outlines, among other things, employer responsibilities when it comes to hiring immigrant workers.
Specifically, the IRCA places an obligation on the employer to confirm the work status of its employees, including the completion and retention of Form I-9, Employment Eligibility Verification. One loophole: Employers don’t have a similar duty to confirm an independent contractor’s work status.
The E-Verify system is intended to help employers meet their legal obligation under the IRCA. It is administered by U.S. Citizenship and Immigration Services and helps verify an individual’s employment status more efficiently and effectively. However, employer use of E-Verify is usually optional.
Under the INA, it is illegal for an employer to hire an individual they know is not legally authorized to work in the U.S. Employers are also barred from recruiting or referring (for a fee) individuals who they know are unauthorized to work in the U.S. But what happens when an employer violates the INA and more precisely, the IRCA? There are two major types of sanctions the employer may face.
First, there are civil penalties. These are monetary fines the employer must pay. Civil penalties can be imposed for a variety of reasons, not only for knowingly hiring an undocumented immigrant. Other reasons can include:
Failing to abide by Form I-9 verification requirements.
Engaging in document abuse.
Committing document fraud.
The second type of sanctions an employer may face includes criminal penalties. These are usually reserved for employers who demonstrate a pattern of hiring, recruiting or referring (for a fee) individuals who are not legally authorized to work in the U.S. Criminal penalties include monetary fines that can exceed a thousand dollars for each undocumented worker as well as prison time.
Unfortunately, these penalties aren’t usually very effective in stopping the unauthorized hiring of undocumented immigrants. One of the reasons for this is the advantages employers gain from hiring workers who are in the country illegally. Some employers to take advantage of undocumented workers’ precarious status, subjecting them to illegal workplace conduct, like discrimination or retaliation.
What Rights Do Undocumented Workers Have?
If employers who hire undocumented immigrants are able to discriminate against them, it must mean that our nation’s anti-discrimination laws don’t apply to them, right? Wrong.
In the vast majority of situations, federal (and many state) employment laws protect undocumented workers. Some of these laws include Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act. In other words, a worker’s citizenship status has no bearing on whether they enjoy protections against workplace discrimination. But one caveat is what remedies an undocumented worker may be eligible for. In some cases, the potential for damages will be reduced.
For example, Hoffman Plastic Compounds, Inc. v. NLRB, the Supreme Court ruled that the IRCA prevented an undocumented worker from being able to recover back pay. This was even if that worker successfully argued they were the victim of the employer’s violation of the National Labor Relations Act.
But the real issue isn’t the potential damage awards available to an undocumented worker who pursues legal action against an employer that violates a federal employment law. The real issue is the threat of retaliation in the form of reporting the worker to federal immigration authorities.
How Can Employers Retaliate Against Undocumented Workers?
Most employment laws have an anti-retaliation provision that makes it illegal for the employer to take an adverse employment action against an employee who is exercising his or her legal right, such as reporting unlawful discrimination. So an employer who decides to turn in an undocumented worker to U.S. Immigration and Customs Enforcement because they filed a complaint with the Equal Employment Opportunity Commission would likely be in violation of an anti-retaliation provision. But that’s cold comfort for a worker who is about to get deported.
A very notable example of this kind of situation occurred during the post-storm cleanup following hurricanes Gustav and Ike. As reported by the Los Angeles Times, Josue Diaz, along with several other cleanup workers, complained about working conditions and discriminatory pay. In response, their employer retaliated by contacting local police and ICE, alleging criminal and immigration violations. The local district attorney eventually withdrew the local criminal charges, but ICE pursued deportation proceedings to remove Diaz and his coworkers from the United States.
While Diaz may have had a successful legal claim due to employment law violations, it was little help due to the threat of deportation. An employer may be willing to risk a comparatively small fine to help send a message to anyone else who might be thinking complaining about a violation of employment laws. And in most instances, undocumented workers will take no action and accept the treatment their employers decide to dish out.
by Tom Spiggle