An undocumented worker in the United States enjoys fundamental legal rights provided by the country's federal laws. We have mentioned in other articles that an undocumented person is not eligible to work, but as long as the employer omits this law and hires an undocumented worker, they will have the same rights as any other, except unionization. However, not having a legal immigration status makes the undocumented worker a person vulnerable when demanding respect for workers' rights illegal workers through legal claims, since they run some risks inherent to their status.
Risks of an undocumented worker when filing a claim
Report to ICE
The greatest risk faced by an undocumented worker when filing a legal claim against their employer is a report of their legal status to ICE, although this may be considered retaliation, the difference is that it is applied only to the undocumented worker. Although this is behavior considered illegal, the outcome may vary according to the state in which you are located.
In the state of California for example, it is explicitly prohibited to report or threaten to report an undocumented worker to ICE, since the California Labor Code protects the employee regardless of their legal status and violation of it can result in the revocation of the company's operating license.
However, in other states in the country, it is possible that ICE will attempt deportation if it finds that the undocumented worker used false information in the employment application. A deportation under these conditions can include a lifetime ban from entering the United States even if you have children or a spouse who is a U.S. citizen.
In this case, the best thing to do is consult with immigration lawyers or labor law specialists who can help you identify the state policies that apply to each situation.At Conexión Legal we have lawyers with free consultation; contact us through this channel by the WhatsApp icon or by Scheduling Your Consultation and explore the alternative solutions to your case.
Retaliation
This means that your boss can adopt reprehensible behaviors against you as a form of punishment for what you have claimed.
This is a risk that both undocumented and legal workers face, since when reporting unsafe working conditions, illicit practices or non-payment of wages and overtime among other complaints, the employer is exposed to an audit by government agencies that in most cases will result in significant financial fines and compensation for the undocumented or documented worker who filed the claim.
Retaliation Faced by an Undocumented Worker
Retaliation can be wage reduction, change of work shifts, assignment to a new position, lack of promotion or change of duties.
Dismissal or Termination of Contract
This also constitutes retaliation and takes place when the employer terminates the employment relationship unilaterally as punishment. If the undocumented worker can prove that this occurs as retaliation for the claim filed and that there are no economic or disciplinary factors that influenced the decision, it constitutes an unjustified dismissal.This type of dismissal is actionable by the undocumented worker in civil courts that do not take into account the immigration status of the person who brings it or shares information with government immigration agencies, so the outcome of it can grant benefits such as reinstatement of the worker and payment of lost wages among others.
How should an undocumented worker prepare to file a claim?
The most advisable thing is to seek legal advice from immigration lawyers and labor lawyers who indicate the possible scenarios you will face if you decide to file a claim. Each case is specific and should consider the history of your employer's behavior, the existence or non-existence of false identity documents, the threats to which the undocumented worker may have been exposed and the severity of the initial complaint. Although these issues may seem complicated, the labor lawyers at Conexión Legal recommend all undocumented workers in the country, that you do not allow your rights to be violated and consult with lawyers with free consultation how to proceed in your specific case.
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