Even if an individual is unauthorized to work in the U.S., if he or she is actually employed, that person is still protected by most other employment laws. Below is a quick guide to some of the decisions and regulations that can affect an unauthorized worker.
- The National Labor Relations Board and the United States Supreme Court have held that undocumented employees are afforded the substantive protections of the National Labor Relations Act — including the right to seek union representation.
- The Labor Bureau of the New York State Attorney General’s Office and the federal Wage and Hour Division consider an employee’s authorization irrelevant to the enforcement of minimum wage and overtime requirements. Both agencies will pursue all underpayments on behalf of undocumented workers for time actually worked.
- The Equal Employment Opportunity Commission (EEOC), which enforces federal laws against discrimination in employment, has stated that “immigration status remains irrelevant to the EEOC when examining the underlying merits of [a] charge."
Seth Borden is an attorney with Kreitzman Mortensen & Borden. He can be reached at email@example.com.