President-elect Donald Trump ran his 2024 campaign on a promise to carry out the “largest deportation effort in American history” and constrain immigration policies currently in place. A second Trump presidency is bringing fear to immigrant communities, but undocumented workers should know that they still have protection against wage theft under federal and state labor laws. Although workers employed in the United States need employment authorization to work legally, federal and state labor laws protect allworkers regardless of immigration status. Below is a summary of some of the important rights that undocumented workers have in the workplace:
- Undocumented Workers are Entitled to Minimum and Overtime Wages
All workers are entitled to payment at or above the minimum wage rate. Currently, in New York State, the minimum wage varies between $15.00 to $16.00 per hour; in New Jersey, the minimum wage is $15.13 per hour; and in Connecticut, the minimum wage is $16.35 per hour. Regardless of immigration status, most workers are also entitled to overtime pay for hours worked over 40 per week. This means that employers must pay workers 1.5 times their regular wage rate for each hour worked over 40 unless these workers are “exempt” from overtime.
Undocumented workers may recover damages for wage theft even if they do not have a valid Social Security number. An Individual Tax Identification Number may be provided for settlement purposes.
- Retaliation and Discrimination Against Undocumented Workers is Prohibited
Undocumented workers may assert their right to be paid in accordance with the law and employers may not retaliate against workers for asserting these rights. Workers are protected by the anti-retaliation provisions of both the Fair Labor Standards Act (FLSA) and state labor laws which provide broad relief for anti-retaliation claims. Some examples of unlawful retaliation against a worker are: decreasing a worker’s hours, terminating his employment, or reporting him to U.S. Immigration and Customs Enforcement (ICE) in response to a complaint about wage violations. An employer’s attorney may also be held liable for retaliatory activity if the attorney takes retaliatory action against the worker on behalf of the employer, such as by contacting ICE about an employee while an FLSA action is pending against the employer.
- Immigration Status Does Not Matter in Court
During the litigation of wage theft claims, courts have repeatedly barred inquiries into the plaintiff’s immigration status and held that information about plaintiff-workers’ immigration status is not discoverable in FLSA cases.
If you feel you have been a victim of wage theft or have any questions about your rights as an undocumented worker, please contact our attorneys for a confidential consultation at 212-583-9500.
