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Facts About Undocumented Workers’ Rights

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Facts About Undocumented Workers’ Rights

It has been said some American industries would come to a standstill if it wasn't for undocumented workers. The estimated 11.3 million individuals come from mostly Mexico, but also from other South American countries, and they are are in many critically important jobs throughout the country. With that said, one might wonder if these workers are completely unprotected since they aren't technically supposed to be working here in the first place. Here are the facts.

Do Undocumented Workers Have Any Rights?

The current federal law affords basic human rights to all workers, despite their legal status. This means that even immigrants with no documentation are entitled to fair, respectful, and just treatment in a safe environment, just like anyone else. This absolutely includes requirements regarding pay, such as minimum wage and overtime. Some states have chosen to allow more benefits and protections for undocumented workers in addition to federal law. Unfortunately, there are some employers that still choose to disregard their workers' rights, because they know how frightened these individuals are of being deported.

Regarding undocumented workers, federal law states that undocumented workers:

  • Have the right to be free from discrimination and harassment (Immigration and Nationality Act)
  • Have the right to workers' compensation or possibly even disability insurance
  • Have the right to sue
  • Do NOT have the right to receive Social Security (but legal immigrants can)

Where Do Most Undocumented Employees Work?

As many know, the jobs that are typically taken by these individuals are jobs that Americans tend to avoid or even flake on. Most often, these folks are employed in agriculture, construction, janitorial, and domestic services such as being the family nanny. Regarding construction, U.S. News reported in June that “The labor shortage is so acute that 91 percent of more than 2,700 contractors, construction managers, builders and trade contractors surveyed in the latest Commercial Construction Index reported having a difficult or moderately difficult time finding skilled workers.” A large part of the problem is that programs designed to teach trade skills have taken a backseat for many Americans due to the strong emphasis on college and white collar jobs as the only real path to success.

One example showing the struggle in agriculture comes from a statistic shared by the Washington Post that comes from the North Carolina Growers Association.  They reported that “When native unemployed people are referred to NCGA, they're almost without exception hired; between 1998 and 2011, 97 percent of referred applicants were hired. But they don't tend to last. In 2011, 245 people were hired out of 268 referred, but only 163 (66.5 percent) of the hired applicants actually showed up to the first day of work. Worse, only seven lasted to the end of the growing season.”

Undocumented workers make up about 5% of the American workforce, and out of that percentage, half of the workforce in agriculture and 15% of construction is made up of foreign-born workers without official legal immigration papers. Several sectors of agriculture have expressed that losing even half of their undocumented workers would wreak havoc and even cause many farms to close down. This was revealed in a study by A&M University in 2015 that was commissioned by the dairy industry and this sentiment has been echoed by other agricultural sectors.

How Undocumented Workers Contribute to American Taxes

Lately, these workers have experienced a lot of aggression from some American citizens, complete with false statements that they are not contributing to our society's economy because they don't pay taxes. The thing is, that it simply isn't true. The Institute of Taxation and Economic Policy have found that at least half of these workers are actually filing income taxes, despite the fact that they, themselves, are not eligible for important benefits that come from them.

Benefits Not Eligible For:

  • Social Security
  • Medicare
  • Earned income tax credit
  • Unemployment insurance

Even though they don't receive the benefits that these taxes help pay for, many undocumented workers do want to become citizens, but because obstacles to applying can get in the way, they choose to at least file income taxes in order to show that they have been contributing once they are able to apply for citizenship. Indeed, proof of contribution is required on the path to becoming a legal immigrant, and this is actually a reason why DACA came into existence.

What if they don't pay taxes?

Another thing that many people don't realize is that even if an undocumented worker is not paying income taxes, they are still contributing to the American economy.

Taxes that they pay:

  • Sales taxes
  • Property taxes
  • Payroll taxes

Many would be surprised to know that the American economy actually gets around $9 billion from payroll taxes paid by undocumented workers. That's a substantial amount. They also donate around $13 billion to the Social Security Administration's retirement trust fund.

But Isn't It Illegal to Hire Someone That is Undocumented?

At this point in time, it is definitely illegal, and the fines are up to $10,000 for employers according to the federal Immigration Reform and Control Act (IRCA). The Special Counsel for Immigration-Related Unfair Employment Practices of the United States Department of Justice is who enforces this.

The employer can be reprimanded for purposefully hiring an undocumented worker, or for not doing due diligence when it comes to determining legal status. The worker, however, may be the one that suffers most if they are caught using fake documents to get hired. If this happens, they could seriously harm their ability to ever become legal immigrants in the US.

Legal Support Is Available

Certainly, there are a number of legal organizations to shed some light on general options, but if you are wanting help for your specific situation, your best bet is to seek the legal help of a qualified lawyer. If an employer is threatening their worker with deportation, an immigration lawyer is their best bet. There are a lot of little intricate technicalities when it comes to the legal rights of undocumented workers, and they must all be looked at individually for each case.  If the worker is struggling with basic workplace rights that are federally required for all workers in the United States, contact an Employment lawyer. This includes rights to work in an environment free from discrimination and to be paid fairly.


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