In Focus: Employment Rights of Undocumented Immigrants

By Douglas Lipsky

Between 11 and 12 million undocumented immigrants currently reside in the country, according to the U.S. Department of Homeland Security (DHS). Undocumented immigrants who work have employment rights protecting them from discrimination and unfair treatment. If your employer is mistreating you because of your immigration status or national origin, an experienced employment lawyer can help protect your rights. 

Undocumented Workers Have Rights

Immigration laws prohibit immigrants from working in the U.S. without authorization. However, some employers, such as restaurants, contractors, and landscapers, hire undocumented workers because they want cheap labor. These employers may not know that once an undocumented worker has a job, they have the same rights as any undocumented immigrant or U.S. citizen, even though they are not legally permitted to work. 

Federal and state laws protect undocumented workers from discrimination, harassment, and wrongful termination. These laws also grant undocumented workers the same minimum wage, overtime pay, and sick leave rights as documented workers. Also, undocumented workers in New York can collect workers’ compensation benefits but are not eligible for unemployment benefits. Notably, in most cases, an employer cannot ask an employee about their immigration status.

However, undocumented workers often get paid substandard wages, are not paid overtime, and are denied sick leave. These workers often don’t know they are entitled to workers’ comp benefits or don’t apply for them out of fear of being deported. It is common for undocumented workers to be harassed, discriminated against, or terminated because of their immigration status, especially if they complain to their employers about unfair treatment.  

Legal Options for Undocumented Workers

Undocumented workers have options, such as filing a complaint with the New York State Division of Human Rights or the federal Equal Employment Opportunity Commission (EEOC). Unfortunately, undocumented workers who file a complaint about discrimination, harassment, or wage theft may face retaliation: employers may fire them or report them to U.S. Immigration and Customs Enforcement (ICE).

If you have suffered discrimination, harassment, or workplace retaliation because of your immigration status, an employment lawyer can help. A skilled attorney who understands immigration and labor laws can take legal action against your employer. Depending on the circumstances, you may be entitled to money damages such as:

  • Lost wages – back pay and front pay
  • Compensatory damages for pain and suffering
  • Punitive damages (designed to punish the offending employer’s conduct)
  • Attorneys’ fees

It takes courage to stand up to a boss who has discriminated against you or threatened you because of your immigration status or national origin. Contact a New York City employment discrimination lawyer who can make the law work for you and protect your rights.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.