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Risks and Protections for Undocumented Workers in the Construction Industry

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According to reports from The Occupational Safety and Health Administration (OSHA) and The National Institute for Occupational Safety and Health (NIOSH), there were more than 6.3 million undocumented immigrants working in construction and agriculture in 2006 [1]. 

These are two of the most dangerous industries in the country, giving undocumented immigrants a much higher chance of being injured in the workplace. 

The overwhelming number of injuries and deaths led to new protections put in place to offer undocumented workers some measure of legal protection. However, the risk to workers remains high. 

Fortunately, undocumented workers can take legal action against unsafe working conditions that lead to injuries with the help of personal injury lawyers. Read on to see how Rosenfeld Injury Lawyers can help protect the rights of undocumented construction workers who are injured due to someone else’s negligence.

The Risks Undocumented Construction Workers Typically Face

Undocumented workers face additional risks in the workplace, especially on a construction site, that other workers do not. Because of their immigration status, many undocumented workers refuse to take action against their employers for fear of being reported and deported. 

They also struggle to push for safety concerns in the workplace, fearing that pushing back against their employer can lead to trouble. This leads to riskier situations resulting in injuries and other problems. 

Increased Injury Rates

The construction industry is one of the most dangerous industries for undocumented workers. Unfortunately, many of the most dangerous jobs are given to an undocumented worker because companies think they don’t have a choice but to accept them. 

Any pushback is usually met with threats and intimidation since any worker who refuses can be reported to Immigration and Customs Enforcement (ICE) and subject to deportation. Being forced into the riskiest jobs in an already dangerous industry means an undocumented worker has a much higher chance of being injured. 

Employer Exploitation

Aside from the physical risks, immigrant workers also face the risk of being exploited by their employers. Less scrupulous construction companies have been found hiring undocumented workers so they can engage in exploitation like wage theft (withholding wages from workers to lower costs) and avoid paying them fair wages. 

Unpaid wages and unpaid overtime are two of the most prominent forms of wage theft. However, creating problems like misclassifying workers as independent contractors makes it much harder for workers to invoke labor laws to protect themselves. 

An independent contractor is not considered an employee and is not entitled to the same protections and benefits as employees. It’s an attempt by the company to avoid responsibilities, including things like payroll taxes, by giving employees the wrong classification on paper. 

Limited Access to Benefits

Another common problem is limiting access to benefits. Workers’ compensation insurance is expensive for construction companies, which is why they try to limit access to benefits. Injured workers may be denied workers’ compensation claims they are entitled to, and the company may threaten them to keep them silent about it. 

In other cases, immigrant workers may not know about the workers’ compensation benefits they are entitled to. Differences in language and the ability to communicate can also play substantial roles in limiting the benefits workers can access. 

It falls to companies or advocates for immigrant workers to help them identify and understand what benefits they should have access to, which is not always available or welcome in every company. 

In response to many of these practices coming to light, the government put certain protections in place to help alleviate the problem. 

The goal is to stop companies from exploiting workers by putting regulations in place that could allow the government to target companies based on labor law violations. These are some of the legal protections available to undocumented construction workers.  

Fair Labor Standards Act (FLSA)

FLSA attempts to put a stop to wage theft and exploitation based on wage. With FLSA in place, workers are guaranteed a minimum wage, as well as benefits such as overtime pay. It also makes it illegal to withhold overtime pay or wages based on immigration status. 

Companies found in violation can face heavy fines and other punishments making wage discrimination an unattractive option for construction companies. 

Occupational Safety and Health Act (OSHA)

OSHA standards apply to everyone on a construction site, regardless of documentation status. Construction workers rely on OSHA to enforce safe working conditions. Companies in violation of OSHA policies could face fines and have their ability to conduct business in that state revoked. 

More importantly, OSHA protects workers from retaliation for reporting unsafe working conditions. Retaliation is a serious concern since companies have been caught firing or taking other actions against workers who file OSHA reports against them. 

National Labor Relations Act (NLRA)

Across every industry, the most powerful thing workers can do to protect themselves and improve working conditions is to unionize. Working as one gives workers the leverage to participate in collective bargaining so they can convince companies to make safety and pay improvements. 

Because of this, construction companies actively try to stop unionizing. NLRA makes it illegal for companies to interfere in the unionizing process or take action against anyone who tries to join or start a union. 

Equal Employment Opportunity Commission (EEOC)

The EEOC makes it illegal to discriminate against workers based on their nation of origin (i.e. where they were born), race, or ethnicity. These three areas have often been the root of discrimination for undocumented workers. 

With up to 15% of workers in 2006 being born in other countries, protecting them from discrimination can have a major impact on workers in every industry [1].

State Laws

Aside from the numerous national protection actions taken by the federal government, many states have taken action to provide protections for workers fitting that state’s specific needs. These protections can be just as, if not more, effective at helping an undocumented worker get the help they need when they need it. 

New York is a prominent example of a state taking a stand to protect immigrants from discrimination and exploitation. In 2021, the governor signed new legislation giving prosecutors more power in going after companies that threaten to disclose your immigration status as a means of extortion [2]. 

In Illinois, the Department of Human Rights (IDHR) works with undocumented workers to make it easier to report intimidation or a labor law violation without retaliation. The IDHR can defer any deportation proceedings that arise by up to two years, giving many workers the chance to complete the requirements for their citizenship status change. 

That way, they can’t be immediately deported in retaliation for reporting a workplace violation. While it doesn’t grant citizenship, a two-year protection against deportation can make a big difference in whether or not they complete the process or come forward at all [3]. 

The Bottom Line

Construction projects are full of people who could use the help of legal services to protect their rights. No matter what your legal status, you have legal rights under U.S. law. Seeking things like compensation for workplace injuries, fair compensation, or improvements in an unsafe work environment should not be met with retaliation or other actions by the company. 

Despite your immigration status, you can take legal action to protect your rights from construction companies trying to use your legal status against you. 

Take legal action by contacting an attorney who can help you with employment law or workers’ compensation claims. Contact the legal team at Rosenfeld Injury Lawyers by filling out our contact form or calling toll-free at (888) 424-5757. We can schedule an interview to learn more about your case and find ways to help protect your rights under the law. 

Resources: [1] Centers for Disease Control; [2] New York Governor’s Office; [3] Illinois Department of Human Rights

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