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Can Undocumented Workers Make Legal Claims for Unpaid Wages?

Posted by Eric Kingsley | Jan 15, 2023 | 0 Comments

There are about 11 million immigrants in California and about a quarter of the foreign-born population nationwide. In fact, foreign-born residents represented at least one-third of the population in five California counties - Santa Clara, San Mateo, Los Angeles, San Francisco and Alameda. According to the Center for Migration Studies, about 22% of immigrants in California are undocumented.

Undocumented workers in field

One in 10 California workers is an undocumented immigrant employed in manufacturing, construction and agriculture. Immigrants are valuable contributors to the state's economy and an important part of our communities.

However, a number of undocumented immigrants are victims of wage theft. Because they don't have the documents to be in this country legally and because they don't have a strong voice to advocate for themselves, employers take advantage of their situation by paying them lower than the minimum wage or by not paying them overtime wages.

If you are an undocumented worker and are not being paid wages you earned, you have the same rights as any other California resident. However, if you are undocumented, you may hesitate to take legal action for fear of losing your livelihood or worse, for fear of being deported.

This is why it is important to contact an experienced Los Angeles employment attorney who will fight for justice on your behalf.

Key Points - Table of Contents

Undocumented Workers Face Wage Theft and Threats

It is a sad fact that some employers believe undocumented workers don't have rights or don't deserve such rights. Because of such an attitude, they deny workers due wages, sick days, overtime pay and rest/meal breaks.

Some employers may even threaten to report workers to the U.S. Immigration and Customs Enforcement or ICE if they file a complaint. These are tactics employers use to silence these employees and manipulate them.

Knowing Your Legal Rights

It is important to know that undocumented workers typically have the same wage and hour rights as those who are authorized to work in the United States. There are federal and California laws, which establish workers' rights to minimum wage, overtime pay, meal and rest breaks, tips and other types of wages. California also has strong and specific employment laws to protect undocumented immigrants.

Here is what you need to know:

  • Your employer cannot use your immigration status to not pay you the wages you have rightfully earned.
  • Your employer is required to pay you the correct minimum wage. In California, the minimum wage in 2023 is $15.50. However, in some cities and counties that amount must be higher. If you live in one of these jurisdictions with a higher minimum wage than the state's minimum wage, you should be paid the higher local minimum wage.
  • Your employer cannot use your immigration status as an excuse to terminate your employment because you complained about unpaid wages.
  • Your employer cannot report or threaten to report your immigration status or that of a family member because you filed an unpaid wages claim or lawsuit in California.
  • Your employer cannot allow federal immigration agents onto private business property without a judicial warrant.

What the Law States

Employers are required to refuse to hire an undocumented worker once they learn about his or her immigration status. Under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal for employers to knowingly hire or continue to employ workers without proper documents.

If your employer fires you, you may wonder if you can recover unpaid wages or even get your job back. An experienced Los Angeles employment lawyer will be able to evaluate your specific situation, analyze the laws that may apply to your case and examine how a lawsuit may be possible, irrespective of your immigration status.

The law says that even if you are not legally authorized to work in the United States, you are protected from wage theft under the Fair Labor Standards Act (FLSA).

This means that a worker, even if he or she is undocumented, is entitled to receive overtime pay, minimum wage and workers' compensation benefits if they suffer injuries on the job.

What If You Don't Have Paychecks or Pay Stubs?

All workers in California are entitled to a pay stub or a wage statement each time they get paid. However, many workers are paid under the table. Such workers may be left wondering how they may be able to prove they are victims of wage theft if they don't have paychecks or pay stubs.

Workers should not be discouraged from seeking out legal assistance or filing an unpaid wages claim even if they don't have pay stubs. They will still need to provide credible evidence to show employment.

That could include self-documentation of hours worked, memos, emails or even a co-worker's testimony.

What Can I Do If My Employer Retaliates Against Me?

Workers can report an employer who they suspect is retaliating against them by filing a retaliation claim with the Labor Commissioner's Office. Employers feel emboldened to retaliate against undocumented workers because they believe these workers will not complain for fear of deportation.

Workers who were fired, demoted or punished for reporting a labor law violation including unpaid wages, can visit the Labor Commissioner's Office's website to file a retaliation complaint.

How an Experienced Lawyer Can Help

What should you do if you're employer is withholding wages? At Kingsley & Kingsley Lawyers, we are passionate about protecting the rights of all California workers, including the rights of undocumented immigrants who often do not have a voice and are unlawfully exploited and intimidated by unscrupulous employers.

We can help evaluate your case and make sure that you are paid the wages that you are owed. Call us today to schedule a no-cost consultation.

About the Author

Eric Kingsley

Eric B. Kingsley is a 2023 "Best In Law" Award winner and has litigated over 150 class actions. He is also an AV peer rated attorney and a prolific speaker at various seminars on employment law.


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