Have you ever interacted with a cashier, gardener, nail salon employee, call center worker, home health aide, parking attendant, or restaurant server? If so, chances are the person who provided you that service was an undocumented worker.
One of Donald Trump's most popular promises during his presidential campaign was that he would immediately crack down on illegal immigration. He made good on that pledge, signing several executive orders shortly after taking office that set in motion the hiring of new U.S. Immigration and Customs Enforcement (ICE) agents and expanded their powers to deport undocumented individuals.
The results were immediate. ICE arrests jumped nearly 40 percent during the first 100 days of Trump's presidency. Many of these were carried out in the context of workplace raids, which have also climbed in numbers since Inauguration Day. In one example, in February, immigration officials carried out raids on Japanese and Chinese restaurants in Mississippi, arresting 55 immigrant cooks, dishwashers, servers and bussers, and transporting them to a detention center in Louisiana, about 160 miles away.
Undocumented workers have always been a vulnerable group and at risk of exploitation. Their precarious status in this country means they have largely been invisible, yet at the same time they perform the work that makes our way of life possible. The dramatic rise in ICE workplace raids and arrests raises significant concerns that undocumented workers will face even more discrimination and harassment.
Vulnerable and Afraid to Speak Up
Workers in the U.S. without documentation have very little power in the employee-employer relationship. Many may feel the only way they can remain in the United States is to keep as low a profile as possible at work and not attract negative attention. They likely fear retaliation from a disgruntled employer could include reporting them to ICE.
That fear is real, and means undocumented workers are more likely than other employees to face wage abuse. This is even more likely now as news of ICE workplace raids hit the headlines seemingly every day.
Unscrupulous employers may use this fear against undocumented workers to pay them less than the minimum wage or deny them compensation for overtime. Such companies realize that undocumented employees are the least likely to speak up and challenge wage abuse.
We know that American citizens and legal immigrants are often hesitant to challenge their employers on issues such as wage exploitation for fear of losing their jobs. For undocumented workers, the stakes are much higher. They not only risk termination, but also deportation for speaking up.
Undocumented Workers Protected By the FLSA
In addition to being vulnerable to deportation, undocumented workers may also be at risk of wage abuse because they may not know they are protected by the federal Fair Labor Standards Act (FLSA). They may feel their legal status means they are not afforded the same rights as American citizens or legal immigrants. In California alone, almost 10 percent of workers are undocumented. These workers are heavily concentrated in the agricultural, construction and service and hospitality industries, where wage theft is unfortunately common. It is estimated that low wage workers in California lose almost $2 billion per year from minimum wage violations by their employers.
The FLSA, however, expressly forbids retaliation against undocumented workers. It is illegal, for example, for an employer to report an undocumented employee to immigration officials in retaliation for filing a FLSA claim alleging wage theft or unpaid overtime.
The courts have also upheld the FLSA on this issue. In 2014, the U.S. District Court for the Southern District of New York sided with a group of undocumented workers who filed a claim alleging their employer was not paying them either minimum wage or overtime. The court was very clear in its ruling in Colon v. Major Perry St., Inc. that the workers were owed back pay regardless of their immigration status.
The ruling said this was the case because the FLSA applies to "any individual employed by the employer." It does not distinguish between legal and undocumented employees. The court noted that the FLSA was written in this way to expressly discourage employers from taking advantage of undocumented workers.
There have been other decisions too that have further strengthened case law on the subject. Some states offer additional protections for employees who are willing to come forward. Under California law, the business and professions code provides for injunctive and restitutionary relief, and the state's Private Attorney General Act allows for penalties against employers who violate wage laws.
The bottom line is that undocumented workers are protected by the FLSA. They must be paid minimum wage and overtime, and employers cannot retaliate against them for filing FLSA claims. This includes disclosing their immigration status to ICE.
ICE Crackdown Should Not Lead to Worker Exploitation
The current federal administration appears intent on ramping up immigration enforcement. We will likely continue to see an increase in workplace raids as well as arrests. This is unfortunate, not only because of the impact on individual undocumented workers and their families, but also because of the vital role they play in the country's economy.
Even in the face of increased enforcement from ICE, however, undocumented workers should not worry they will face exploitation on the job because of their status. Under the FLSA, they have the same rights as any American citizen or legal immigrant. Employers would be wise to understand this before taking any action against undocumented employees that could constitute either wage abuse or retaliation.