Unauthorized Workers Have Rights Too...and they are not afraid to use them

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October 01, 2002
Legal Corner
Melissa Calhoon - info@berkleylawgroup.com
Daniel T.Berkley- info@berkleylawgroup.com

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© 2002 Hospitality Upgrade. No reproduction without written permission.

Red Alert:
Undocumented workers are entitled to workplace protection under state and federal laws. We are confident that none of our readers would knowingly hire undocumented workers, since that would be unlawful, yet we thought it prudent to provide the following information in case one of you has a friend in that situation.

In 1986, a federal law was enacted that prohibits employers from hiring workers who are not eligible to work in the United States. This law is known as the Immigration Reform and Control Act of 1986 (IRCA). Under IRCA, employers are required to confirm an employee’s right to work in the United States through the review of specified documents such as social security cards, passports and visas, among other things, as a condition of employment. Employers are not required to verify the authenticity of such documents. An employer who unknowingly hires an unauthorized worker but later discovers the truth, or hires someone who loses his authorization during employment, must discharge that employee. It is also unlawful under IRCA for employees to present false documents. Employers and aliens who violate IRCA may each be subject to criminal prosecution and civil fines.1 Employers who hire unauthorized workers may also run afoul of the IRS and other agencies and administrative or judicial bodies.

IRCA sets up a strategy for keeping the ranks of U.S. workers legal, but does not address the rights of unauthorized workers who are hired anyway. This issue has recently come to the forefront by virtue of a recent U.S. Supreme Court decision called Hoffman Plastic Compounds, Inc. v. NLRB (No. 00-1595). Hoffman involved a situation in which a union organizer, who happened to be an unauthorized worker, was wrongfully terminated for union activities. The question for the Supreme Court was whether the employee was entitled to receive a back pay award for his wrongful termination, which is a traditional remedy provided in these sorts of cases. Since back pay awards compensate claimants for hours they would have worked had they not been terminated, whether you can or should award back pay to someone who should never have been hired in the first place is a difficult question. Ultimately, the Supreme Court determined that awarding back pay to an unauthorized worker would directly conflict with the congressional goals supporting IRCA and would therefore be inappropriate. Although, it did authorize the use of other remedies available under the National Labor Relations Act (NLRA).

The reaction to Hoffman has been very interesting, as agencies such as the federal Department of Labor, which implements wage and hour laws, and the California Department of Industrial Relations (wage and hour, and occupational safety and health laws) have leapt into action. Both agencies have issued statements distinguishing the rights of undocumented workers under wage and hour and safety laws, from the Hoffman decision.2

Under California law all workers have the right to receive minimum wage for all hours worked, and overtime pay when applicable. They have the right to file wage claims with the state labor commissioner if they believe that their rights under California’s wage orders (including rights to meal periods and breaks) have been violated. They also have the right to file complaints for workplace safety violations, and to be free from retaliation for exercising any of these rights. Remedies available include recovery of unpaid wages and collection of back pay in retaliation actions. In California and most other states, undocumented workers who are injured on the job are also entitled to workers’ compensation benefits.

The laws enforced by the Department of Labor will also apparently be enforced without reference to an employee’s authorization to work in the United States. Additionally, while the Supreme Court has determined that the NLRA does not extend rights to back pay to unauthorized workers, the decision indicates that such workers do have the right to organize. Finally, workers, authorized to work or not, are entitled to a wide range of protections under civil rights laws, other state laws and the Constitution.

The message here is clear. American employers who fail to comply with IRCA are at risk in several different ways. Failure to comply with IRCA combined with failure to comply with labor and employment laws compounds risk unnecessarily. Compliance with IRCA is simple and requires little more than organization and manpower. Here technology can be of great assistance, as payroll management programs and other human resources software packages can help monitor the verification process, consistent with compliance obligations under IRCA. Alternatively, simple calendaring programs can be used not only to trigger collection of employee documents within the time required by law at hire but may also be used to remind managers of upcoming expiration dates for visas and similar documents. Basic word processing and spreadsheet programs may also be useful for developing checklists to track deadlines and obligations in the hiring and employment process. Either way, the less employers rely on memory to meet their obligations, the better. The more employees can streamline and systematize the process, the more likely that IRCA and other employment laws will be complied with in a full, fair and uniform manner.

Arguably, the downside of compliance with IRCA, especially in the rank and file workforce of kitchen helpers, buspersons, housekeepers and others who are so eager for employment in the United States that they will accept substandard wage rates and conditions, is that it limits the pool of prospective employees. However, due to the protective umbrella of state and federal laws, employing unauthorized workers does not provide the financial relief that some employers may desire – at least, not without significant risk of prosecution and penalties. American employers should not be fooled into thinking that undocumented workers are afraid to assert their rights. They do so more and more each day, and they win.

Melissa Calhoon and Daniel T. Berkley of the Berkley Law Group, P.C. and can be reached at (415) 989-7711 or at mailto:info@berkleylawgroup.com.

1 Found at 8 U.S.C. § 1324a, et seq. The implementing regulations may be found at 8 CFR § 274a, et seq.
2 See www.dir.ca.gov/QAundoc.html and http://www.dol.gov/esa/regs/compliance/whd/whdfs48.htm



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