Down But Not Out

Undocumented workers may not be legally hired but may exercise many of the same rights as documented workers. 8/6/2010

There are an estimated 12 million undocumented immigrants in the United States today. Approximately 7 million of those immigrants are part of the United States labor force and according to a study conducted by Tulane University are typically paid about a third less than their legal counter parts. Undocumented workers are typically exposed to dangerous conditions and long hours. In 2008, the meat packing company Agriprocessors was raided by Immigration and Customs Enforcement (ICE). Among the 389 workers detained, many had claims of abuse. Some of the workers had been beaten and more were forced to work up to 17 hours a day six days a week without any overtime compensation. The workers of Agriprocessors mainly felt that they had no choice but to work at agriprocessors in those conditions because to try to fight such a large company would mean economic suicide.  This type of thought is not only wrong but detrimental to the entire labor force of America. The mistreatment of workers is illegal and can be fought and won in a court of law. The reason why employers continue to mistreat undocumented employees is simply because they feel they can get away with it. The best tool against this type of human rights violation is information on what protects employees and how help can be reached.

Unfortunately, many undocumented workers are unaware of how many rights they do in fact have and the protection they are entitled to as people working in the United States of America. It is crucial to understand that in most cases, labor laws apply to all employees regardless of citizen or permit status. All employees, documented and undocumented are protected by the Fair Labor Standards Act, or FLSA.  The FLSA guarantees such rights as a minimum wage, which is $8.00 per hour in California and $7.25 per hour federally. The FLSA also guarantees overtime pay for “nonexempt” employees who have worked more than 40 hours in a week. Overtime consists of the normal rate of pay plus half of that pay. For example, if an employee is paid $8.00 an hour, every hour that employee works over 40 hours a week they will earn $12.00. Even if that employee is not paid an hourly rate but a salary, he/she may still be entitled to overtime.  Overtime may also be rewarded if: an employee does work for an employer before his/her starting time, an employee works through his/her meal period at employers request, work is taken home with the employers consent, an employee is expected to be “on call” and must be at work within an hour of that call or if an employee stays late on a day one week with the understanding that he/she will not have to work the full hours next week.  Federal law requires that overtime and minimum wage posters are placed in the workplace. Generally, employees cannot refuse to work overtime unless they have a valid reason such as taking care of a sick family member or something that will cause physical or financial harm to themselves. It is illegal to force employees to forfeit their overtime pay If an employer fails to do so, he/she can be sued for back pay and damages with the help of a California attorney.

In addition to overtime violations, meal time and rest period violations are common in the work place. All employees working in the United States of America are entitled to rest periods. For every 4 hours of work every employee is entitled to 10 minutes of rest which should be taken as close to the middle of the 4 hours as possible. Every employee is also entitled to meal periods of 30 minutes which must be taken during the first 5 hours of work. An employee may waive his/her meal period if the day’s work will be completed in 6 hours. During a work period of 10 hours or more an employee is entitled to 2 meal periods. If the first meal has been taken the second may be waived unless the day’s work exceed 12 hours. If an employer fails to allow for any of these provisions that employer is liable for damages and back pay.

Issues of dangerous working conditions can also arise in the work place. If while working, an employee hurts themselves due to faulty equipment or a poor working environment the employer may be liable for compensation. Employees who are disabled on the job are entitled to time off to recover and monetary compensation. Amounts of compensation and time off vary on the injury. An attorney should be contacted in the event of an accident to prevent unfair labor practices on the part of the employer.

Many times, the primary issue for undocumented workers is not simply knowledge of the law but also fear of deportation. Though a considerable risk, undocumented workers are afforded options which allow their immigration status to remain private. In Rivera et. Al v. Nibco, Inc., the Magistrate judge entered a protective order preventing the defendant from inquiring about immigration status. As long as the plaintiff is in fact an employee of an employer, that employer is liable for damages from things such as unsafe working environments, illegal wages and hours and discrimination of any kind regardless of immigration status or citizenship.

All workers, undocumented and documented are entitled to these same rights which can be enforced through litigation:

  • · Minimum wage in California is $8.00 per hour
  • · Overtime must equal the normal rate of pay plus 50% that rate of pay.
  • · Overtime pay in the event of an employee working more than 40 hours during a work week
  • · Overtime pay in the event of working through meals, being “on call”, staying late even if it means not working the full time next week, taking work home, and working before starting time.
  • · 30 minute meal periods every 5 hours
  • · 10 minute rest period every 4 hours

If you feel that you have suffered from any of the types of discrimination or unlawful working conditions there are attorneys that can help. These issues will not simply go away and can be fought with the right legal counsel. For more information on how to fight mistreatment in your work place, go to There, experienced attorneys who thoroughly understand the law will help you regain what is rightfully yours.

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