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Employment Rights of Undocumented Workers

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This article provides information about the employment rights of undocumented workers under federal and Texas law.

Composed by TexasLawHelp.org • Last updated January 12, 2023

Warning

This article tells you about employment rights as an undocumented worker. Due to recent immigration enforcement actions, you should consult with a legal aid organization or a private attorney BEFORE contacting any government agency or taking other action in your case.

What employment rights do undocumented workers have?

All workers, including those who are undocumented, have the same basic employment rights as other workers, regardless of their immigration status. Several laws provide these rights. This section gives a general summary of some of these laws.

Federal law — Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (FLSA) is a federal law created by Congress to establish employment-related rights.

An employee, as defined in the FLSA, includes undocumented workers. A federal court stated in 2011 that the FLSA applies to any person employed by an employer, regardless of immigration status, for work actually performed.

See Solis v. Cindy's Total Care, Inc., 2011 U.S. Dist. LEXIS 125501 (S.D.N.Y. Oct. 31, 2011).

Key rights provided:

  • Minimum wage — Undocumented workers are entitled to be paid the minimum wage.
  • Maximum hours and overtime — Undocumented workers may not work more than 40 hours per week unless the employer pays at least one-and-one-half times the regular pay rate for the extra hours worked.

More useful information:

  • The FLSA is a federal law enforced by the U.S. Department of Labor (DOL).
  • An undocumented worker may file a complaint with the DOL's Wage and Hour Division (WHD) by mail or in person at a WHD district office.
  • A complaint should be filed within two years of a violation. It should include the worker's name, address, and phone number; the employer's name and phone number; the type of work performed; and how and when the worker was paid. Services are free and confidential. See How to File a Complaint with the Wage and Hour Division.

Federal law — National Labor Relations Act (NLRA)

The National Labor Relations Act (NLRA) is another federal law that provides important rights to employees. Its main purpose is to protect employees' rights to organize and negotiate with their employers.

An employee as defined by the NLRA includes undocumented workers.

Key rights provided:

  • Labor organizations — Labor organizations, or unions, are made up of employees or agencies representing employees. These organizations deal with employers about wages, labor disputes, hours, grievances, and working conditions. Undocumented workers have the right to create, assist, join, or refrain from joining labor organizations, subject to certain exceptions.
  • Collective bargaining — Collective bargaining is the process through which a labor organization negotiates terms of employment with an employer. Undocumented workers have the right to bargain collectively with employers through representatives of their own choosing.
  • Freedom from unfair labor practices — Undocumented workers have the right to be free from an employer's unfair labor practices. These can include interfering with labor organizations or collective bargaining attempts, refusing to bargain collectively subject to certain exceptions, and firing or discriminating against an employee because the employee filed charges or gave testimony under the NLRA.

The NLRA is enforced by the National Labor Relations Board (NLRB). If an undocumented worker believes their rights have been violated, they may file a claim against an employer or labor organization.

See the NLRB Regional Offices or the NLRB's information about Investigating Charges.

Federal law — Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits certain forms of discrimination and provides important employment protections.

Title VII applies to both U.S. citizens and undocumented workers.

Key rights provided:

  • Freedom from employer discrimination — Undocumented workers have the right not to be discriminated against in hiring, firing, compensation, or other terms of employment based on race, color, sex, religion, or national origin.
  • Freedom from employment agency discrimination — An employment agency cannot refuse to refer someone for employment or otherwise discriminate against the worker because of race, color, religion, sex, or national origin.
  • Freedom from labor organization discrimination — Undocumented workers cannot be excluded or expelled from a labor organization because of race, color, religion, sex, or national origin.

Title VII is enforced by the Equal Employment Opportunity Commission (EEOC).

If an undocumented worker believes they have been discriminated against because of race, color, sex, religion, or national origin, they may file a charge with the EEOC. See the EEOC information on Filing a Charge.

Federal law — Migrant and Seasonal Agricultural Worker Protection Act (MSPA)

Undocumented workers who are also migrant or seasonal workers have rights under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Key rights provided:

  • Payment of promised wages — Undocumented workers have the right to be paid the wages they were promised.
  • Supplies — Generally, an employer cannot require a worker to purchase goods or services only from the employer as a condition of employment.
  • Written information — Workers have the right to written information about wages and working conditions in a language they can understand when necessary and reasonable.
  • Safe housing and transportation — Undocumented workers have the right to safe housing and transportation when the employer provides them.

The MSPA is a federal law administered in part by the U.S. Department of Labor's Wage and Hour Division. See the Department of Labor's information about the Migrant and Seasonal Agricultural Worker Protection Act.

Texas law — Suit and damages for contract liability

Undocumented workers generally have a contractual right to be paid for the work they perform and to receive the amount promised to them.

For example, if an undocumented worker signed a contract promising $8 per hour for 40 hours of work per week and the employer did not pay the amount required by the contract, the worker has the right to sue for the wages promised.

Texas law — Texas Payday Law

Under the Texas Payday Law, private employers must pay their employees according to standards established by the Texas Labor Code.

The Texas Payday Law covers situations in which one person hires another to work for pay in circumstances that create an employer-employee relationship.

Form C-8 is a Texas Workforce Commission worksheet used to help determine whether a worker is an employee. According to Form C-8, a worker is an employee if the person who hired the worker has the right to direct or control the worker, both as to the final result and the details of when, where, and how the work is performed.

Undocumented workers are covered by the Texas Payday Law.

Key rights provided:

  • Set and ensured paydays — Undocumented workers have the right to regular paydays established by the employer. A worker generally must be paid at least once a month. If an employer does not set a payday, the worker's paydays become the first and fifteenth days of the month.
  • Notice of paydays — Employers must give employees notice of their paydays. The notice must be posted where employees can clearly see it.
  • Bonuses and commissions paid in a timely manner — Workers have the right to receive bonuses and commissions if there is an agreement to pay them. The employer must make these payments in a timely manner.
  • Payment in proper currency and form — Workers have the right to be paid in U.S. currency, such as by check, or through an electronic transfer such as direct deposit.
  • Freedom from improper wage deductions — Workers have the right to their full pay unless a deduction is required by a court order or state or federal law, or the employee agrees in writing to a deduction for a lawful purpose.

The Texas Workforce Commission oversees the Texas Payday Law. An undocumented worker wishing to file a claim must submit a wage claim form within the applicable deadline.

See Workforce Solutions offices and the Texas Workforce Commission's information on How to Submit a Wage Claim.

Texas law — Texas Workers' Compensation Act

The Texas Workers' Compensation Act is a state law within the Texas Labor Code that provides compensation, including income and medical benefits, for covered employees who suffer work-related injuries or illnesses.

Texas private employers may generally decide whether to provide workers' compensation insurance coverage. Employers generally must notify employees whether they provide coverage.

Under the Act, both citizens and noncitizens, including undocumented workers, are covered.

Key rights provided:

For employers that participate in the workers' compensation system:

  • Compensation for work-related injuries — Undocumented workers have the right to compensation for covered injuries received on the job or work-related illnesses. Workers' compensation may cover some lost wages and medical bills resulting from work-related injuries and illnesses.

For employers that do not participate in the workers' compensation system:

  • An undocumented worker may have the right to bring a personal injury lawsuit against an employer for an on-the-job injury.

The Texas Workers' Compensation Act is regulated by the Texas Department of Insurance, Division of Workers' Compensation (TDI-DWC).

See the archived TDI complaint information and Injured Employee Resources.

What if an employer tries to bring the undocumented worker's immigration status into the dispute?

The original article discusses the relationship between the U.S. Department of Labor (DOL) and U.S. Immigration and Customs Enforcement (ICE) in labor disputes.

It explains that undocumented workers involved in a labor dispute may have protections concerning immigration enforcement and disclosure of immigration or citizenship status.

Important: The article identifies exceptions involving matters such as national security, protection of critical infrastructure, certain federal criminal investigations, or enforcement directed or requested by designated federal officials.

Undocumented workers may also be protected in lawsuits from discovery of immigration or citizenship status when that information is irrelevant to the employment dispute. A court may issue a protective order limiting discovery of citizenship information in appropriate circumstances.

Undocumented workers may have rights involving minimum wage, overtime pay, union organization and collective bargaining, freedom from unfair labor practices and discrimination, contract and tort claims, paydays, bonuses and commissions, proper payment of wages, improper wage deductions, and workers' compensation.

Warning

Due to immigration enforcement concerns, an undocumented worker should consult with a legal aid organization or a private attorney BEFORE contacting a government agency or taking other action.

Migrant farm and reforestation workers may have additional rights involving written information about pay and working conditions, safe employer-provided housing and transportation, workplace safety, and protection against unlawful deductions.

What rights do undocumented workers NOT have?

There are exceptions to the general rule that undocumented workers receive many of the same employment protections as authorized workers.

Federal law — Immigration Reform and Control Act (IRCA) and Hoffman Plastic

The Immigration Reform and Control Act (IRCA) was designed in part to prevent employers from knowingly hiring workers who are not authorized to work in the United States.

In 2002, the U.S. Supreme Court decided Hoffman Plastic Compounds, Inc. v. NLRB. The case involved an undocumented employee who was fired for participating in union activity.

Although undocumented workers have rights under the NLRA, the Supreme Court held that federal immigration law limits certain remedies available to workers who are not authorized to work.

Key rights not provided:

  • Reinstatement — An undocumented worker generally cannot be reinstated to a job if doing so would require an employer to knowingly employ a worker who is not authorized to work.
  • Back pay — Workers who have never been legally authorized to work in the United States may be unable to recover certain back pay for periods when they did not work.
  • However, an undocumented worker may recover wages for work that was actually performed.
  • Title VII — Hoffman Plastic does not eliminate Title VII's protections against unlawful discrimination.

Texas law — Texas Unemployment Compensation Act

The Texas Unemployment Compensation Act provides temporary, partial income replacement to certain qualified people who are unemployed through no fault of their own.

Key right not provided:

  • Under Texas law, undocumented workers generally do not qualify for unemployment benefits.

The Texas Workforce Commission oversees the Texas unemployment compensation system. See its archived information about Unemployment Claim Management.

If an undocumented worker obtained employment by providing fraudulent documents and is later illegally fired during a labor dispute, the worker may be unable to recover certain back pay and generally may not be reinstated. Undocumented workers also generally do not qualify for Texas unemployment benefits.

What are the responsibilities of the employer?

Employers have responsibilities under federal immigration law concerning employment authorization. IRCA prohibits employers from knowingly hiring workers who are not authorized to work and requires employers to verify the work-authorization status of employees at the time of hire.

Employers use Form I-9, Employment Eligibility Verification for this purpose.

Key responsibilities of the employer:

  • The employee completes the employee portion of Form I-9, and the employer must complete its required verification. Employers must follow the verification process for new hires and may not single out an employee because the employee looks or sounds "foreign."
  • Employees must present acceptable documentation listed on Form I-9.
  • The employee generally chooses which acceptable documents to present from the lists provided with Form I-9. If an employee provides acceptable documents, an employer generally may not demand different or additional documents.
  • Federal law prohibits an employer from knowingly continuing to employ a worker who is not authorized to work.
  • An employee who knowingly provides false documents and an employer who knowingly hires an unauthorized worker may violate federal law.

See the archived Form I-9 and U.S. Citizenship and Immigration Services information about Form I-9.

The original article also provides information about filing complaints involving unfair immigration-related employment practices. See the archived U.S. Department of Justice information about Filing a Charge.

Why are undocumented workers protected by labor laws?

Many rights and protections under the FLSA, NLRA, Title VII, MSPA, and Texas labor laws apply to undocumented workers even though federal law restricts the employment of workers who are not authorized to work in the United States.

Key reasons discussed in the original article include:

  • Employers must follow employment laws. Allowing employers to deny minimum wage, overtime, safe working conditions, collective bargaining rights, and other protections based solely on immigration status could encourage exploitation.
  • Labor protections affect all workers. If employers could avoid employment laws by hiring undocumented workers, this could affect wages, working conditions, and job opportunities for other workers as well.
  • Labor protections discourage employers from violating immigration law. Allowing employers to obtain an advantage by denying employment protections to undocumented workers could create an incentive to hire unauthorized workers.

How can an undocumented worker safely pursue an employment claim?

The original article explains that immigration status may not be relevant to certain employment claims and that courts may restrict discovery of immigration information in appropriate cases.

However, pursuing an employment claim can raise complicated immigration and employment-law issues.

It can be very helpful for an undocumented worker to get assistance from a lawyer or legal aid organization before bringing a claim. Communications between a lawyer and client may also be protected by attorney-client confidentiality.

Final warning

This article tells you about employment rights as an undocumented worker. Due to immigration enforcement concerns, you should consult with a legal aid organization or a private attorney BEFORE contacting any government agency or taking other action in your case.

Sources

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