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Justice for All: Workplace Law and the Undocumented Worker

April 8, 2015

I recently gave a talk to a group of soon-to-be college graduates about workplace law. I gave them an outline of at-will employment, anti-discrimination laws, and non-compete issues. I told them about laws relating to wages, and how California jealously protects the wages of its workers.

One student raised her hand and asked me, "I am not a United States citizen. Do the laws still protect me?"

I was proud to answer "yes" to her question.

1. Employees include *all* employees in California

California law explicitly states that all of the provisions of its Labor Code apply to "all individuals regardless of immigration status." See Ca. Lab. Code §1171.5(a).

That an important statement. That means that even employees who do not have the legal right to work in the US cannot be denied their wages after earning them. In other words, an employer can't hire someone, have them work, and then not pay them.

Undocumented workers are subjected to wage theft more than other employees, primarily because of their vulnerable position. One study from 2008 showed that more than a quarter of undocumented workers are paid below the minimum wage, with 60% of them being shorted by $1 or more an hour. Of those who work overtime, 3/4 of them did not get paid overtime wages.

About 40% of undocumented workers in this study had illegal deductions taken from their pay. Imagine working a minimum wage job in, say, a restaurant, and having to pay for a customer who skipped out on the bill. See http://nelp.3cdn.net/1797b93dd1ccdf9e7d_sdm6bc50n.pdf

California employment law protects *all* employees, meaning it extends to everyone, regardless of how they came to this country.

2. Employers cannot threaten an employee because of that person's immigration status

One of the reasons undocumented workers fall prey to illegal business practices is because of their vulnerability. Frequently, employers know that the person they hired is undocumented, and pay them less than minimum wage or illegally deduct from their paychecks, believing that the employee has no recourse. Sometimes, the employer will threaten the employee with reporting that person to the government.

California law no longer allows its employees to be threatened this way. It is illegal to threaten an employee with a report to the government about that person's immigration status.

3. Employees have recourse

The California Department of Industrial Relations has a procedure to address wage theft. Although it accommodates anyone, it is particularly designed for low-wage workers. Undocumented workers have equal access to this process. A report to the DIR's Division of Labor Standards Enforcement will get the ball rolling. You can find your local office here: https://www.dir.ca.gov/dlse/DistrictOffices.htm

Sometimes, especially in higher value cases or class actions, it may make more sense to sue by using a private attorney. California law also makes it illegal to ask a party to a lawsuit about their immigration status, unless doing so is necessary for the case by a showing of clear and convincing evidence.


No one should have to work without being paid properly, or be the victim of illegal deductions taken from the paycheck that they rely on. California law agrees, and extends its protections to all California workers.

 

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