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US Immigration

Posted 11/29/2008

Undocumented Workers Have Rights

The current economic crisis has resulted in a rising unemployment rate in the U.S. A huge number of workers have been laid-off even by big U.S. companies.

The huge job loss of U.S. citizens and legal permanent residents has led to an increase in the crackdowns and raids on companies hiring undocumented aliens. Presumably, these draconian policies are intended to discourage illegal immigration to the U.S. so that jobs could be made available for the displaced U.S. citizens and permanent resident workers.

Under the current situation, many have asked if undocumented workers have rights.

Under the Fair Labor and Standards Act (FLSA) which guarantees fair treatment in regards to compensation and time worked for covered employees, undocumented workers are entitled to the same pay as legal workers for time worked and pay-outs for accrued vacation on termination. They are entitled to minimum wage, overtime pay and work breaks.

Workers' compensation laws provide financial assistance for employees who are disabled as a result of illness or injuries incurred in the course of, and as a result of, their employment. They provide wage loss relief, medical care, rehabilitation and survivors’ benefits. While workers compensation plans vary from state to state, compensation is granted even to undocumented workers, as a general rule, provided they prove that the disability was the result of work-related injury or occurrence.

They also have health and safety rights. They can refuse to perform unsafe works which may pose a real danger to them or their co-workers.
Labor relations laws also allow them to organize or join labor unions in order to improve their working conditions.

Regarding unemployment benefits, undocumented workers may not be eligible to receive them since most states require individuals to have valid social security numbers. In addition, undocumented workers are considered not “able to work” and “available to work.”

As to social security benefits, undocumented workers are not eligible to receive these until they have achieved legal status, even though they made tax contributions during their unauthorized employment. Social security benefits include retirement, disability, supplemental security income, medicare and survivor benefits. Once they have obtained legal status, the computation of credits and benefits will retroact to the time of their contribution.

Do the antidiscrimination laws protect them? Yes. This means that their employers cannot fire them, refuse to hire them, harass them or take any action because of their national origin, race, color, sex, age and religion.

Employers cannot use their undocumented status to fire them for complaining about not paying them wages. Employers are prohibited from retaliating against workers who assert their rights under the law. 

has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor and professor, he is also the author of a book on immigrant experiences. He has spoken in international and national conventions and has been interviewed on radio and television, including the ABC Nightly News. He has participated in meetings with White House staff and the Immigration Commissioner to discuss immigration reforms. For his community service and advocacy, he has received numerous awards in the U.S. and abroad. For more information, you may log on to his website at or call (212) 695-5281
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