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Library - Employment Law
Employee Rights
EVEN UNDOCUMENTED WORKERS MAY CLAIM WAGE LAW
PROTECTION
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Q:
I entered the
United States on a tourist visa. My right to stay has
expired but I have remained here in Los Angeles where I
now work. I have worked at an average of 10 hours a day.
However, I have not been paid the premium overtime rate
of 1.5 times my hourly rate. I am afraid to complain
because I am out of status at the present time. Do I
have the same rights as other employees who are
authorized to work in the U.S.? |
A:
Yes. All California workers, with or without legal authorization to
work in the United States, are protected by California’s labor laws
regulating wages and working conditions. The rights guaranteed to
all workers include the right to:
1. Receive the prevailing minimum wage (currently $8.00 per hour.)
2. Earn overtime pay after working more than 8 hours per day and 40
hours in one week.
3. To file claims with the court or state labor agencies if they
believe their employer has violated labor laws.
4. To file workplace safety and health complaints with Cal/OSHA.
5. To exercise their rights without fear of retaliation from their
employer.
The rights granted to California workers are guaranteed to “illegal”
or undocumented employees. It is the public policy of the State “to
vigorously enforce minimum labor standards in order to ensure
employees are not required or permitted to work under substandard
unlawful conditions or for employers that have not secured the
payment of compensation, and to protect employers who comply with
the law from those who attempt to gain competitive advantage at the
expense of their workers by failing to comply with minimum labor
standards.”
In a case decided by the California Court of Appeal, the question on
the extent of the workers’ rights to claim labor law protection was
raised. Undocumented workers were hired for public works projects
but were not paid prevailing wages by the construction company
employer. The employers asked the Los Angeles Superior Court where
the case was initially filed to dismiss the complaint on the ground
that under the federal law, the Immigration Reform and Control Act
of 1986 (IRCA), and federal cases interpreting the law, undocumented
workers are not allowed to assert their claims against their
employer. The employer also argued that the California laws allowing
undocumented workers to claim unpaid wages is in conflict with the
federal law, IRCA, and cannot be enforced.
The superior court judge agreed with the employer and dismissed the
case. Citing Hoffman v. Plastic Compounds, Inc., a federal case
based on the IRCA, the Los Angeles judge ruled that undocumented
aliens are barred by the IRCA to make such a claim, regardless of
the California law. In Hoffman, the court determined that (1)
undocumented workers used false work authorization documents, and
(2) the award of back pay violated IRCA because it provided wages
for work not performed and could not have been performed without
violating the IRCA.
The California Court of Appeal reversed the lower court ruling and
found in favor of the undocumented workers. The court found that the
Hoffman case was not applicable because the California case does not
involve (1) false work documentation and (2) payment of wages for
non-performed work.
More importantly, the Court of Appeal found that there is no
conflict between IRCA and California’s wage laws. Allowing employers
to hire undocumented workers and pay them less than the wage set by
law is a strong incentive for the employer to do so. This in turn
encourages illegal immigration. Enabling employers to hire
undocumented workers and pay them less than the prevailing wages
would defeat the purpose of IRCA by condoning and encouraging future
violation by employers.
Moreover, awards for payment of wages do not condone future
unauthorized work. Rather, they make it clear that employers should
not be allowed to profit from employing undocumented workers and
then exploiting them.
©
Law Offices C. Joe Sayas, Jr.
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