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Employment Protections for Unauthorized Immigrant Workers

September 29, 2015
Proposed overhauls of the American immigration enforcement system like the one announced by President Obama in November 2014 demonstrate the importance of the topic of immigration in the United States. Among the President’s proposed reforms are extending the opportunity of legal status to parents that are here illegally but whose children were born here, effectively providing relief from deportation for up to 3.7 million unauthorized immigrants, and changes to the Deferred Action for Childhood Arrivals programs, or DACA.[1] [2] In few areas has immigration been more contentious, however, than when it comes to the labor market, with arguments over whether or not unauthorized immigrants’ participation in the labor force has been harmful for U.S.-born workers.[3]

By Genesis Nunez, C’16


Unauthorized Immigrants in the US Labor Force According to the Pew Center’s most recent estimates, as of 2012, unauthorized immigrants made up 3.5 percent of the American population and composed 5.1 percent of the labor force, creating a share of 8.1 million unauthorized immigrant workers.[4] The Center’s report “Share of Unauthorized Immigrant Workers in Production, Construction Jobs Falls Since 2007: In States, Hospitality, Manufacturing and Construction Are Top Industries,” shows that the significant majority of unauthorized immigrants work in low-skill service industries.[5] Twenty-six percent of the farming industry is composed of unauthorized immigrants, as well as 17 percent of the cleaning and maintenance industry and 14 percent of the construction industry, to name a few.[6] For a more comparative view, 33 percent of unauthorized workers are in service jobs (janitors, child care workers, or cooks) versus 17 percent of U.S.-born workers, 4 percent work in farming, fishing, and forestry versus .5 percent of U.S.-born citizens, and 7 percent have professional occupations versus 21 percent of U.S.-born workers.[7]

Unauthorized Immigrants and US-born Workers Have Different Occupational Profiles 

Their legal status, combined with the nature of their jobs, makes unauthorized immigrants particularly susceptible to abuse by employers. The Southern Poverty Law Center’s publication on worker abuse explains that immigrant laborers—both authorized and unauthorized—are subject to abuse by employers in the forms of wage theft, according to the 41 percent of Latino immigrants surveyed that said they were not paid for their work, and lack of medical care for on-the-job injuries.[8] Because of their remote working sites and disproportionate male to female ratios, female immigrant workers in the agricultural sector are also often victims to rape and sexual harassment in the fields where they work.[9] Though authorized and unauthorized immigrants face the same types of abuses by employers, unauthorized immigrants’ situation is even more dire as employers oftentimes use their legal status and threats of deportation to keep them from reporting the abuse and complaining over working conditions and lack of pay.[10]

Contrary to popular belief, however, unauthorized immigrants are protected as workers under Title VII of the Civil Rights Act of 1964. Under Title VII, employers are prohibited from discriminating against employees on the basis of race, color, religion, national origin, or sex, despite an employee’s legal status in the country.[11] To carry out the provisions of Title VII and enforce the federal employment discrimination laws, the Equal Employment Opportunity Commission (EEOC), at which I have had the opportunity to intern this summer, was established.  Since its establishment, the Commission has evolved to protect employees against other forms of discrimination such as discrimination in pay with the Equal Pay Act of 1963 (EPA) and discrimination on the basis of age with the Age Discrimination in Employment Act of 1967 (ADEA), disability with Title I of the Americans with Disabilities Act of 1990 (ADA), and genetics with the Genetic Information Nondiscrimination Act of 2008 (GINA).[12] If an unauthorized worker is discriminated against because of his national origin, for example, he can seek help from the EEOC for protection under Title VII for the discriminatory act.

The remedies available under Title VII and the various acts enforced by the EEOC pertain to both authorized and unauthorized workers, with some exceptions. There are remedies that may not be granted to unauthorized workers because they conflict with immigration laws. For example, if an unauthorized worker cannot produce the proper work documents required by immigration law, he cannot be reinstated to his job, a remedy that might be available to an authorized worker. Additionally, in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (2002), the Supreme Court ruled that unauthorized workers are not allowed to receive back pay for periods following their termination, as such action is “foreclosed by federal immigration policy.”[13] The Commission nonetheless remains dedicated to protecting unauthorized workers’ rights. Following the decision, former EEOC Vice Chair Paul Igasaki said, “The Commission’s commitment…to protect the rights of all workers, regardless of immigration status, is not altered by this action. While the Supreme Court’s decision in Hoffman may affect a person’s eligibility to receive some forms of relief once a violation is established, immigration status remains irrelevant to the EEOC when examining the underlying merits of the charge.”[14]

Though they are protected under the law, unauthorized immigrant workers fail to report abuses of wrongdoings either because they do not have access to enforcement authorities or are afraid they will be deported if they do file a complaint. Most commonly, however, immigrants withstand employer abuse simply because they do not know such protections exist. Employers should be held accountable for educating both themselves and their employees, authorized or not, of their rights under Title VII. Abuse in the forms that unauthorized immigrant workers are subjected to need not be tolerated, especially when they are legally protected from such abuses. The dissemination of information surrounding their rights can go a long way in fixing this problem.

  [1] Shear, Michael, Julia Preston, and Ashley Parker. “Obama Plan May Allow Millions of Immigrants to Stay and Work in U.S.” New York Times, November 13, 2014, accessed July 19, 2015, http://www.nytimes.com/2014/11/14/us/obama-immigration.html?action=click&contentCollection=U.S.&module=RelatedCoverage&region=Marginalia&pgtype=article&_r=0.

   [2]“MPI: As Many as 3.7 Million Unauthorized Immigrants Could Get Relief from Deportation under Anticipated New Deferred Action Program,” Migration Policy Institute, November 19, 2014, accessed July 19, 2015, http://migrationpolicy.org/news/mpi-many-37-million unauthorized-immigrants-could-get-relief-deportation-under-anticipated-new.

  [3] Steven A. Camarota. “Unskilled Workers Lose Out to Immigrants,” New York Times, January 6, 2015, accessed July 20, 2015, http://www.nytimes.com/roomfordebate/2015/01/06/do-immigrants-take-jobs-from-american-born-workers/unskilled-workers-lose-out-to-immigrants.

  [4] Passel, Jeffrey S. and D’Vera Cohn, “Unauthorized Immigrant Totals Rise in 7 States, Fall in 14: Decline in Those From Mexico Fuels Most State Decreases.” Washington, D.C. Pew Research Center’s Hispanic Trends Project, November.

  [5] Passel, Jeffrey S. and D’Vera Cohn. 2015. “Immigrant Workers in Production, Construction Jobs Falls Since 2007: In States, Hospitality, Manufacturing and Construction are Top Industries.” Washington, D.C.: Pew Research Center, March.

  [6] Ibid.

  [7] Ibid.

  [8] “Worker Abuse, Latino Workers in South Face Rampant Abuse,” Southern Poverty Law Center, accessed July 19, 2015, http://www.splcenter.org/publications/under-siege-life-low-income-latinos-south/1-worker-abuse.

  [9] “Bill Tamayo:  Criminal Cases Needed to End Immigrant Abuse,” Frontline, June 25, 2013, accessed July 17, 2015, http://www.pbs.org/wgbh/pages/frontline/social-issues/rape-in-the-fields/bill-tamayo-criminal-cases-needed-to-end-immigrant-abuse/.

  [10] “Worker Abuse, Latino Workers in South Face Rampant Abuse,” Southern Poverty Law Center.

  [11] “Laws Enforced by EEOC,” U.S. Equal Employment Opportunity Commission, accessed July 20, 2015, http://www.eeoc.gov/laws/statutes/index.cfm.

  [12] Ibid.

  [13] “Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws,” U.S. Equal Employment Opportunity Commission, November 26, 1999, accessed July 19, 2015, http://www.eeoc.gov/policy/docs/undoc-rescind.html.

  [14] “EEOC Reaffirms Commitment to Protecting Undocumented Workers from Discrimination,” U.S. Equal Employment Opportunity Commission, June 28, 2002, accessed July 19, 2015, http://www.eeoc.gov/eeoc/newsroom/release/6-28-02.cfm.

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