In 2019, immigrants made up one-third of the entire labor force in California. However, participation in the labor force among immigrants may be even higher because census data undercounts immigrants who work in the informal sector.
Many migrant workers tend to work in demanding jobs, often involving physical labor, including in the agriculture and construction industries. Migrant workers tend to have difficulty getting access to adequate medical care and workplace benefits.
At Tomorrow Law™, we do not stand for workplace injustice, regardless of an individual’s home-born country. If you or someone you love is being treated unfairly by an employer in Los Angeles, California, contact one of our migrant worker’s attorneys today.
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What are Your Rights?
Migrant workers are some of the hardest workers and should generally receive the treatment and benefits as any other employee. However, that is not always the case. Sometimes employers will attempt to mistreat migrant workers. Knowing your legal rights ahead of time will leave you better prepared to handle an employer’s attempt at violating your rights.
If you or a loved one are wondering what rights you may have against an employer, we always recommend you speak with an experienced migrant workers attorney. However, the below information can serve as a reference guide.
Workers’ Compensation
If you were injured on the job or suffered an illness due to work, you might wonder, Do I qualify for workers’ comp in California? Under California law, all injured workers are entitled to workers’ compensation benefits regardless of their immigration status. However, under federal law, an employer is not permitted to hire individuals who do not have a right to work in the United States. Because California law must adhere to federal regulations, undocumented workers can receive workers’ comp benefits with some stipulations or restrictions. For instance, all undocumented workers are entitled to receive compensation to cover the cost of medical treatment but may not receive temporary disability benefits if modified (“light duty”) work is available.
Minimum Wage
Undocumented immigrants are entitled to the same minimum wage as documented workers. The minimum wage in Los Angeles, California, is $15.96, but as of July 1, 2023, it is set to increase to $16.78 per hour.
Overtime
As with any employee, migrant workers must receive overtime pay at 1.5 times their regular hourly rate if they work more than eight hours a day or over 40 hours per work week.
If an employee works more than 12 hours in one day or over eight hours on the seventh day, they are entitled to two times their regular hourly pay rate.
Employer wage and hour violations are common among migrant workers. If your employer commits a wage and hour violation by paying you less than the minimum wage or withholding overtime pay, you can file a wage claim with the Division of Labor Standards Enforcement.
Remember, it is always illegal for an employer to threaten to report you to ICE or any immigration law enforcement because you filed a complaint for wage and hour violations.
Unemployment Insurance
Generally, undocumented immigrants are not eligible to receive unemployment insurance.
Under California Employment Development Department guidelines, undocumented individuals are not “eligible to work” and, therefore, cannot claim unemployment benefits. However, individuals authorized to work in the United States may qualify for unemployment benefits. It is best to always speak with an attorney before filing for these benefits.
Recourse for Employment Discrimination
On both the state and federal levels, there are anti-discrimination, harassment, and retaliation protections for undocumented workers.
You may be able to file a lawsuit against your employer if you believe they engaged in any workplace discrimination, harassment, or engaged labor law violations.
Examples include:
- Harassing an employee about their immigration status, race, religion, etc.;
- Paying undocumented workers less than others in similar positions, qualifications, and job duties;
- Blatantly giving undocumented workers less favorable positions or shifts;
- Making promotions or training inaccessible;
- Harassing a worker about their spoken language or accent;
- Firing an employee for speaking a language other than English;
- Firing an employee for reporting harassment or labor violations; and
- Firing an employee for filing a lawsuit against the employer.
It is no secret that immigrants face workplace discrimination. A migrant workers lawyer can help you understand whether the conduct you are experiencing at work constitutes discrimination, harassment, or retaliation and provide you with potential remedies.
Personal Injury or Employment Lawsuit
Individuals, regardless of their immigration status, have the right to seek legal recourse. Depending on the circumstances, this may be a personal injury lawsuit, employment discrimination claim, or a wage complaint. If your employer violates your rights, you may be able to file an employment lawsuit against them.
Dealing with any employment dispute can be challenging to navigate on your own, and depending on your immigration status, it can feel even more challenging and overwhelming.
New Protections for Migrant Workers
In January 2023, the Department of Homeland Security issued new guidance to protect immigrants from deportation and retaliation during labor disputes. The policy sets out a new process by which undocumented workers could apply for protection against deportation when reporting labor violations.
The new guidelines will provide a centralized intake process that will allow quicker processing times and allow workers, advocates, and their attorneys to circumvent individual DHS offices that have essentially played by their own rules by requiring different documentation and materials than those of neighboring DHS field offices. The new policies now allow undocumented workers to apply for legal work visas simultaneously.