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What Legal Protections Do Undocumented Immigrants Have Against Employer Retaliation?

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One of the biggest fears any undocumented worker has is that their employer will retaliate against them for standing up for themselves. 

Joining a union, advocating for their rights, or even asking for equal consideration are all things you may be scared to do in the workplace if you are undocumented. However, there are legal protections for undocumented immigrants against employer retaliation. 

With a few exceptions, immigrant workers have the same rights in the workplace as everyone related to benefits they are eligible for. Don’t let your immigration status deter you from taking action to protect your rights since you do have legal protections and options you can use to defend your rights. 

Read on to learn more about the legal protections in place and how Rosenfeld Injury Lawyers can help you. 

Understanding Employer Retaliation

Employer retaliation is taking action against you for participating in acts that are protected by law. This usually happens when those actions impact the company.

Undocumented immigrants’ eligibility to receive workers’ compensation, undocumented immigrants’ rights in cases of workplace sexual abuse, and the risk of deportation when filing a personal injury claim are all critical issues that need addressing.

An example of this is filing an OSHA complaint against a company with an unsafe construction site. The company taking action against you, such as firing you or threatening to report you to Immigration and Customs Enforcement  (ICE) for being undocumented, is a form of retaliation [1]. 

Retaliation does not have to result in firing you. It can also include creating a hostile work environment. Undocumented workers are often threatened because companies think they have leverage over employees and undocumented workers often comply to avoid other legal troubles. 

However, protections are in place to address these issues, and they apply to all workers, regardless of immigration status. 

Common Retaliation Tactics Against Undocumented Workers

There are several tactics unscrupulous companies use against undocumented workers. Some of these include:

  • Wage theft – withholding wages or reducing pay based on being undocumented
  • Demotions – demotion of staff to less prominent positions with less pay
  • Unjust terminations – firing employees without a good reason
  • Threats or termination – threatening to terminate an employee without just cause
  • Threats of being reported to immigration authorities – using your immigration status to motivate compliance or be deported
  • Intimidation – making threats or insinuating the company will cause trouble for the worker if they don’t stop actions the company doesn’t like
  • Withholding benefits – not providing access to company benefits that you are entitled to
  • Withholding overtime pay – denying overtime pay when staff members meet the requirements for it and are entitled to it
  • Misclassification of job types – listing workers as independent contractors to avoid paying benefits and protections and prevent you from claiming benefits or protections
  • Employment eligibility verification checks – Companies will request new copies of legal documents that can identify someone as undocumented, such as employment verification forms or I-9s that require social security numbers. It is an attempt to find conflicting information they can use to show you are undocumented and report you to ICE.

Federal Protections Against Retaliation for Undocumented Workers

The federal government has protections in place against retaliation for undocumented workers. Many offer protection for everyone regardless of immigration status. 

  • OSHA – The Occupational Safety and Health Administration’s safety standards are focused on creating a safe working environment for everyone in the workplace. Companies who limit the implementation of safety standards for an undocumented worker can receive an OSHA violation just as if they failed to implement safety standards for anyone else. 
  • FLSA – The Fair Labor Standards Act enforces pay standards, such as a minimum wage and overtime pay. Companies trying to pay workers less because of their immigration status can be targeted by government officials due to employment law violations. 
  • NLRA – The National Labor Relations Act offers protection for workers to unionize and participate in collective bargaining. The National Labor Relations Board oversees the protection of employees’ rights on a federal level, helping enforce the NLRA and investigating companies who try to stop workers from unionizing. 

State Laws and Protections

There are federal laws protecting undocumented immigrants, but most states also have their own laws against employer retaliation. 

The U.S. Department of Labor is responsible for overseeing federal protections for workers against retaliation. There are several programs in place, including OSHA and the Equal Employment Opportunity Commission (EEOC) which have protections for a variety of situations, all of which address retaliation or intimidation against employees. 

Illinois has several pieces of legislation in place, including the WhistleBlower Act and the recently passed House Bill (HB) 5561. The goal of this legislation is to outline and expand on the protections for workers against their employers, specifically when revealing information to the public and facing retaliation for it.  

An undocumented worker is also protected under these pieces of legislation as well as others that cover specific situations and circumstances, such as workers’ compensation benefits and national origin discrimination. 

The WhistleBlower Act offers protection for anyone who alerts the public or the government about potentially dangerous actions within a company. House Bill (HB) 5561 expands the protections already in place to specifically include, among other things, protections against retaliation based on immigration status [2]. 

Steps to Take if Facing Retaliation as an Undocumented Worker

Despite all of the protections that are in place, there are still companies that participate in citizenship status discrimination. If you are facing retaliation as an undocumented worker, there are steps you should take to protect yourself. 

The first step is always to document the retaliation. Take time stamped notes, record your interactions if legally allowable in your state, or find some other legally admissible way to document your problems. This will help with any legal investigations that come up later. 

Every company should have a means of filing complaints internally. While it may seem counterintuitive, start by filing an internal complaint. One of three things will happen:

  • The company will step in and handle the problem internally in the right way
  • The company will ignore your complaint and let the employment discrimination continue
  • The company will retaliate further with termination or a similar action that you should document

Giving the company the chance to handle this problem internally removes their ability to say you never gave them a chance to handle it. Many companies have a requirement in their employment contracts that says that you have to follow the internal process before reporting to any outside agency. 

Give the internal process a chance so you are in compliance and will have fewer hurdles to overcome if more legal action is needed. 

Finally, consult an immigration attorney for more detailed advice on what to do next. Immigrant workers can get access to legal help just the same as anyone else. Obtaining competent legal advice gives you options to pursue under federal law. There are things a lawyer can do to help protect your rights. 

They can advocate on your behalf for government intervention, as well as prevent your status from being revealed during the process. They can protect workers when facing workplace discrimination, as well as help with a workers’ compensation claim. 

The Bottom Line

Undocumented workers face discrimination due to their immigration status despite all of the attempts at immigration reform. Fortunately, you have options if you are being discriminated against. 

A combination of state workers’ compensation laws, anti-discrimination laws, and legislation like the Immigration and Nationality Act (INA) make it clear that you can take legal action to protect your rights. 

Don’t let access to legal counsel stop you from taking legal action. Consult with a workers’ compensation and personal injury lawyer with experience working with undocumented workers and immigration law. Contact Rosenfeld Injury Lawyers for a free consultation by filling out our contact form or calling us toll-free at (888) 424-5757 to schedule a consultation.

Resources:  [1]; [2] Illinois Attorney General’s Office;

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