Edwin’s Story
At the height of the pandemic, the legal nonprofit where I work provided introductory workplace rights training to 15 workers on Zoom. We discussed minimum wage protections, overtime pay, at-will employment, antidiscrimination laws, safety and health, and workers’ right to organize.
We then conducted individual intakes with workers, and I did an intake with “Edwin” (not his real name). Edwin told me he was owed money and didn’t know what to do. He left his job at a restaurant in downtown Boston, and because he quit, his boss didn’t pay him for the last two weeks. He had rent to pay and was desperate. He texted his employer and then demanded to be paid in person at the restaurant, only to have his former boss threaten him with false accusations of stealing. Edwin knew what the threat meant; if he kept fighting for wages, he could face potential retaliation, including calls to the police or immigration. I told Edwin he could take legal action despite lacking work authorization.
We filed a small claims complaint alleging unpaid wages. Edwin’s former employer called shortly thereafter, saying he wanted to pay. Edwin settled for approximately $1,000 more than he was owed because we leveraged the mandatory trebling of damages under Massachusetts law.
Unauthorized Workers in the United States
As of 2021, an estimated 10.5 million unauthorized workers live in the United States, comprising 4.6 percent of the total workforce. These workers hail from countries across the globe, ranging from Brazil to El Salvador to Korea to Nepal. On any given day, one is likely to encounter unauthorized workers, perhaps at the nail salon, in a hot restaurant kitchen, or working on a neighbor’s roof. These are the types of jobs that most U.S. citizens would rather avoid. Unauthorized workers pay an estimated $11.74 billion yearly in taxes and do essential work. During the COVID-19 pandemic, more than two-thirds of unauthorized workers had frontline jobs deemed “essential.” Their jobs are physically demanding, and workplace violations are common.
Employers and Unauthorized Workers
The Immigration Reform and Control Act of 1986 (IRCA)
The Immigration and Nationality Act (INA) of 1952 governs immigration and provides for the deportation of unauthorized “aliens.” In 1986, amendments to the INA included IRCA, which, among other things, makes it unlawful to knowingly hire, recruit, or refer unauthorized workers for a fee for U.S. employment. IRCA also establishes an employment verification system whereby employers must attest that they have verified a worker’s status by examination of legal documents. Workers, too, must certify that they are either U.S. citizens or otherwise authorized to work. Regulations promulgated under IRCA established the I-9 Employment Verification Form. IRCA imposes fines for violations and, in cases of pattern or practice of knowingly hiring unauthorized workers, criminal penalties, including imprisonment.
An employer is “not required to be a document expert” and must accept documentation from a worker if it appears facially valid. While employers must inspect documents, they can’t request more documentation than the I-9 form requires. Employers with four or more employees also can’t discriminate based on the worker’s actual or perceived immigration status; in other words, an employer can’t make jobs available only to U.S. citizens and discriminate against other authorized applicants, such as asylees. Lastly, an employer can’t use national origin to discriminate between qualified individuals.
Hoffman Plastic Compounds, Inc. v. NLRB
A worker’s immigration status is generally not relevant in labor disputes. One significant exception concerns remedies for violations of the National Labor Relations Act (NLRA) and potentially other laws whose remedies include “back pay” and reinstatement of an unauthorized worker. The NLRA protects a worker’s right to join a union and to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” It protects workers who take collective action to improve workplace conditions, whether in a union or not.
In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), an unauthorized worker was fired unlawfully for supporting an organizing campaign, an activity protected under the NLRA. The National Labor Relations Board (NLRB) ordered the employer to reinstate the worker and provide back pay for time spent off the job. The employer took the case to the Supreme Court, arguing that IRCA prohibited reinstating the worker and paying back pay as the worker was unauthorized to work. In a 5–4 decision, the Court held that while the employer violated the NLRA, the worker couldn’t receive back pay and reinstatement, as these remedies would “unduly trench upon explicit statutory prohibitions critical to federal immigration policy.” Noting this caveat, we turn to the significant workplace laws that apply to unauthorized workers.
Employment Laws and Unauthorized Workers
Wage Laws
The Fair Labor Standards Act (FLSA) sets federal mandatory standards for minimum wage, overtime, recordkeeping, and child labor. Most workers are covered under the FLSA, including domestic service workers such as housekeepers, full-time babysitters, and cooks. However, there are industries, such as agriculture, to which the FLSA does not apply. If the FLSA doesn’t apply, state law may, so always check your state laws. The inverse may also be true, as in my state, Massachusetts, where the state overtime law exempts hotel and restaurant workers, but the FLSA does not.
A worker can file an FLSA complaint directly in court or with the U.S. Department of Labor (DOL). In FLSA litigation, a worker may be awarded back pay (payment for unpaid wages earned is not limited by Hoffman Plastic), liquidated damages, and attorney’s fees. Where the wage violation(s) impacts many workers, many attorneys bring such cases as “collective actions.” There has been a tremendous increase in collective actions filed under the FLSA in recent years; many of these cases involve unauthorized workers who were not paid the minimum wage, overtime, or both. The FLSA also prohibits employer retaliation against workers for asserting their rights under the statute, including for bringing a complaint. Retaliation can result in further claims against the employer.
While the FLSA creates the floor, states are free to enact wage laws that are more employee friendly. For example, Massachusetts currently has a $15 per hour minimum wage, whereas the FLSA provides only $7.25. Many states establish minimum wage laws, while others follow the FLSA floor.
Workplace Antidiscrimination Laws
Unauthorized workers have protection under the various federal antidiscrimination laws, provided the employer has at least 15 employees (or 20 in age-discrimination cases). These laws include Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, sex (including pregnancy, sexual orientation, and identity), religion, and national origin; the Age Discrimination in Employment Act of 1967, which prohibits employment discrimination of individuals aged 40 or older in employment; and Title I of the Americans with Disabilities Act, which prohibits workplace discrimination against disabled individuals.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces these laws and, much as with the FLSA, violations can be litigated in court. A worker who prevails under Title VII can recover injunctive and other equitable relief, compensatory and punitive damages, and attorney’s fees. Note that available remedies vary by statute and do not apply across the board; for example, federal age-discrimination law does not provide punitive or compensatory damages but allows for “liquidated” damages. Importantly, as with most worker protection laws, employers are prohibited from retaliating against an employee for asserting their rights under the antidiscrimination laws.
A state antidiscrimination law may apply if an employer is not covered by federal law due to having too few employees. In Massachusetts, for example, workers may bring claims under the state statute if the employer has six or more employees.
Workplace Safety and Health
The Occupational Safety and Health Act of 1970 (OSH Act) is a federal law regulating workplace safety and health. The OSH Act created the Occupational Safety and Health Administration (OSHA) within DOL to ensure safe and healthful working conditions. Many safety and health industry standards are enforceable under the OSH Act, along with its “general duty clause,” which requires employers to maintain workspaces free of serious recognized hazards. OSHA conducts workplace inspections to ensure compliance. Employees can file complaints with OSHA anonymously and online. Violations of the OSH Act can result in penalties against the violating employer, varying based on severity.
Section 11(c) of the OSH Act, known as its “whistleblower” provision, protects workers from employer retaliation for exercising rights guaranteed under the OSH Act, including filing complaints with OSHA or raising workplace safety concerns. Section 11(c) has a 30-day statute of limitations, so workers must act quickly. As with other agencies, OSHA does not inquire about a worker’s immigration status. Some states have state-run OSHA-approved plans but must provide at least as adequate protection as OSHA.
Most states also allow unauthorized workers to receive worker’s compensation for workplace injuries. They also may be eligible for other state programs, such as paid family and medical leave in Massachusetts, which provides job-protected leave for serious health conditions and parental leave. Unauthorized workers are ineligible for unemployment benefits, as this requires their authorized availability to work.
Unauthorized Workers and Unlawful Retaliation
José Paz’s Story
While worker protection laws and anti-retaliation provisions apply to unauthorized workers, there’s no guarantee an employer won’t threaten criminal or immigration enforcement. In 2017, an unauthorized Massachusetts worker named José Paz fell from a ladder at work and broke his leg. The employer’s worker’s compensation insurance had lapsed at the time of his injury. When the hospital contacted the employer about the injury, the employer denied that José, who had presented a different name to the hospital than the one he used at work, was their employee. The employer then contacted a Boston police detective, who contacted Immigration and Customs Enforcement (ICE). José was arrested and placed in detention. With support from several local organizations, including legal aid and a worker center, OSHA opened an investigation, and DOL filed a retaliation lawsuit against José’s former employer. A federal jury awarded José $50,000 in compensatory damages for emotional distress and an additional $600,000 in punitive damages.
Potential Immigration Relief
Workers who have been victims of human trafficking or other qualifying crimes may be eligible for a U visa or T visa. U visas are available to victims of certain qualifying crimes who have suffered substantial mental or physical abuse related to those crimes and are willing to assist local, state, or federal officials in the detection, investigation, and/or prosecution of the violent crime. T visas are available to victims of labor or sex trafficking who report trafficking crimes and comply with reasonable requests for assistance from law enforcement. Both U and T visas support law enforcement by promoting the cooperation of victims in prosecutions. U and T visas require law enforcement certification, and state and federal-level labor agencies provide certifications.
In January 2023, the Department of Homeland Security (DHS) announced a new process to protect workers who may be potential witnesses or victims of workplace violations. If a state, local, or federal agency has an open investigation for workplace violations, workers can request a “statement of interest” from the investigating agency. Workers can then use the statement of interest in applications to DHS for deferred action, which provides immigration protection and employment authorization for two years. The legal nonprofit where I work has supported many workers’ applications for deferred action related to investigations under various state and federal agencies, including the EEOC, DOL (wage-and-hour and OSHA), NLRB, and our state attorney general. With deferred action, workers are more likely to report workplace violations and support government investigations.
The Role of Worker Centers
Edwin and José asserted their rights because worker centers supported them. Worker centers are community-based and community-led organizations that provide service, advocacy, and organizing support to workers in low-paying jobs. Edwin went to a local worker center for support. The worker center, a partner organization of our office, invited him to our monthly workplace rights training. In José’s case, Metrowest Worker Center connected him with legal support, including legal services, which supported him with an OSHA retaliation complaint and a worker’s compensation attorney to support him with his injury.
Even though workplace laws cover unauthorized workers, they are complicated and often require legal support to be enforced. Moreover, non-white and low-income workers are least likely to feel comfortable discussing workplace issues. Worker centers, where workers can feel comfortable discussing workplace issues, are the bridge between workers and their rights.
Our office works closely with the Centro Comunitario de Trabajadores (CCT) in New Bedford, Massachusetts. Today, many of the workers in seafood hail from Guatemala, and many primarily speak Mayan K’iche’. These immigrant workers fillet fish and package scallops for restaurants and supermarkets nationwide. CCT has a unique three-step-organizing philosophy: First, workers receive education about their rights; second, workers get organized; and third, workers exercise their rights by taking direct actions and improving workplace conditions. Direct actions—including private and government lawsuits—have led to tremendous change in workplaces, and if workers remain organized, change can be lasting.
Become an Ally
Building connections with worker centers makes economic sense for private attorneys. As discussed above, many laws protecting unauthorized workers provide for liquidated damages, attorney’s fees, and punitive damages. Worker centers are always looking for trusted legal allies, and representing unauthorized workers can provide challenging and rewarding work for willing attorneys.
