ALL workers are protected by California’s laws regulating wages and working conditions. The protection applies undocumented workers who are entitled to the following rights:
– The prevailing minimum wage (currently $8.00 per hour)
– Overtime pay for working more than 8 hours per day or 40 hours per week
– Meal breaks and rest breaks
– Safe and healthy work environment
– Protection against employer retaliation
These rights are extended to the undocumented as a matter of public policy. Allowing employers to hire undocumented workers and to pay them less than the wage set by law is a strong incentive for an unscrupulous employer to exploit such workers for profit. When employers know that they have to pay their workers according to the law, regardless of the worker’s immigration status, employers are less likely to abuse undocumented workers with substandard wages and work conditions.
The task of helping undocumented workers enforce their basic labor rights becomes difficult when the workers themselves will not come forward, complain, or testify for fear of being deported because of their undocumented status. These employees should know that they have rights protected by law.
One of these fundamental rights applies to wages. A worker’s claim for unpaid overtime and other wages or rights has nothing to do with his or her immigration status. Hence, information on one’s immigration status is not a proper inquiry in a case seeking recovery of wages. The disclosure of immigration information violates privacy rights and is irrelevant to the labor violation. In helping undocumented employees, our law firm has successfully resisted opposing attorneys’ demands for immigration-related information. This approach has resulted in recovery of wages for these employees.
The undocumented also obtains help in the workplace if there is a documented employee who initiates a class or representative action against an employer who fails to pay the full wages required by law. If the unlawful practice by the employer is committed against other employees, a successful class action can result in obtaining a common fund for the class. Ultimately, these actions benefit all employees regardless of status.
There is additional protection where undocumented workers suffered physical or mental abuse at the hands of exploitative employers. These workers may be able to apply for and obtain a U visa if they are willing to assist law enforcement or other government officials in the investigation or prosecution of those crimes. Persons who receive U visas may remain in the United States for up to four years, and may eventually apply for permanent residency.
The Department of Labor (DOL) may issue a U Visa where it has detected any of the following criminal activities: involuntary servitude, peonage, trafficking, obstruction of justice, or witness tampering. Workers who have been victims of workplace sexual harassment and sexual assault, and egregious wage theft, may also be eligible for U visas.
Undocumented workers who are witnesses to an employer’s violations, and who have been threatened with deportation or termination in an attempt to silence them and impede investigation into the labor violations, may also be eligible for U visas. The employer’s actions in this instance may be construed as an attempt to tamper with a witness and obstruct justice.
Simply because a worker is undocumented is no reason for him or her to keep silent and endure abuse and exploitation. There are protections in place and such workers are better served by consulting with an experienced attorney.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
