California’s reputation as a cultural melting pot is well-deserved. Around 27% of Californians are foreign-born, more than double the percentage of the rest of the U.S. Over 11 million immigrants call the state home. Those immigrants – including undocumented individuals – make up a vital part of California’s workforce. Roughly one in three workers in California are from another country, and undocumented immigrants comprised roughly 9% of California’s labor force in 2016. In 2018 alone, undocumented immigrants paid an estimated $4.5 billion in federal taxes and $2.5 billion in state and local taxes.
If you’re an undocumented immigrant, you may have questions about your access to legal representation or whether you’re entitled to certain benefits while working in the U.S. This FAQ provides you with the resources you need to know your rights and have the quality of life you deserve.
Can Undocumented Immigrants Work in California?
Yes, undocumented immigrants can work in California. However, it is illegal for employers to knowingly hire illegal immigrants according to the Immigration Reform and Control Act of 1986:
“[It is] unlawful for a person or other entity to: (1) hire (including through subcontractors), recruit, or refer for a fee for U.S. employment any alien knowing that such person is unauthorized to work, or any person without verifying his or her work status; or (2) continue to employ an alien knowing of such person’s unauthorized work status.”
The Act also places more pressure on employers to verify an employee’s citizenship before hiring them, requiring the employer to:
“Attest, on a form developed by the Attorney General, that the employee’s work status has been verified by examination of a passport, birth certificate, social security card, alien documentation papers, or other proof; (2) the worker to similarly attest that he or she is a U.S. citizen or national, or authorized alien; and (3) the employer to keep such records for three years in the case of referral or recruitment, or the later of three years or one year after employment termination in the case of hiring…”
So, you can work in California as an undocumented immigrant. However, your employer may face certain legal penalties for hiring you (if they either failed to check your immigration status or knowingly employed you despite being an undocumented immigrant).
Additionally, undocumented immigrants with a U Visa can live and work in the U.S for up to four years, and are eligible to apply for a lawful permanent status after three years.
Falsifying your immigration status to an employer or immigration officer can result in legal penalties, such as deportation.
Do Undocumented Immigrants Get Minimum Wage?
Yes, undocumented immigrants should receive the same minimum wage as documented workers. In California, that means you should be earning $14/hr if your employer has under 25 employees, $15/hr if they employ 26 workers or more, and $16.04/hr if you work in Los Angeles County (starting in July).
Can Immigrant Workers Get Overtime?
Yes, undocumented workers must receive overtime pay (1.5 times their normal pay rate) for working more than eight hours in a day, or over 40 hours in a workweek. Additionally, if you work over 12 hours in a day, or over eight hours on the seventh day of a workweek, you’re entitled to two times your regular rate of pay.
All nonexempt employees MUST receive overtime under the U.S. Fair Labor Standards Act (FLSA). However, certain employees are exempt from receiving overtime pay. Exempt employees include:
- Workers who spend the majority of their time handling administrative, executive, or professional tasks;
- Workers who must exercise discretion and independent judgment at work; and
- Workers who earn a salary equal to twice the minimum wage in their state.
Administrative professionals, executives, outside salespeople, creatives, and computer software or hardware-focused employees are all examples of exempt workers.
If your employer commits wage and hour violations by paying you less than the minimum wage, you can file a wage claim with the Division of Labor Standards Enforcement.
It is ILLEGAL for your employer to threaten to deport you or report you to ICE or other authorities for filing a complaint or lawsuit over wage and hour violations.
Can An Employer Stop Me From Speaking Languages Other Than English At Work?
No, employers CANNOT discriminate against employees based on their native language or other related factors, such as their accent, syntax, or vocabulary.
Additionally, according to Federal law, forcing workers to speak English at all times in the workplace or during work hours is burdensome and violates Title VII of the Civil Rights Act of 1964.
Employees are entitled to speak another language when they’re having a casual or private conversation, on break, or when the discussion does not concern work.
The Occupational Safety and Health Administration (OSHA) encourages employers to communicate workplace safety conditions in a language that their workers understand.
According to Government Code 12951, an employer CAN restrict an employee’s language usage if:
(1) The language restriction is justified by a business necessity.
(2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction.
(b) For the purposes of this section, “business necessity” means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.
If an employer refuses to allow you or other coworkers to speak a language other than English without meeting those requirements, you could file a discrimination complaint or lawsuit against them.
Can Undocumented Immigrants Take Sick or Family Leave in California?
Yes, undocumented workers can take paid family leave as long as they have worked in California and had State Disability Wages withheld from their paycheck.
If your employer qualifies under the Family Medical Leave Act (FMLA), you could receive up to 12 weeks of unpaid leave to take care of a serious illness or the illness of an immediate family member. This includes your parents, spouse, minor children, and adult children unable to care for themselves. You could even qualify for up to 8 weeks of paid family leave under the Paid Family Leave (PFL) program in California. Additionally, if you or another qualifying family member contracts COVID-19, you may also qualify for FMLA leave.
If you take FMLA leave, your job remains protected. You are entitled to return to the same position you left – if that isn’t possible, then a similar and comparable job position.
Can Undocumented Immigrants Receive Unemployment Insurance?
No, undocumented immigrants CANNOT receive unemployment insurance. To receive unemployment insurance, you must be “available to work.” Since hiring undocumented immigrants is illegal under Federal law, undocumented individuals are not considered “available to work” by the California Employment Development Department.
“Unemployment compensation benefits, extended duration benefits, and federal-state extended benefits shall not be payable on the basis of services performed by an alien unless the alien is an individual who was lawfully admitted for permanent residence at the time the services were performed, was lawfully present for the purposes of performing the services. or was permanently residing in the United States under color of law at the time the services were performed, including an alien who was lawfully present in the United States as a result of the application of the provisions of Section 203(a)(7J (conditional entrants, refugees, and asylees: now a reference to Sections 207 and 208 of the Immigration and Nationality Act, or INA) or Section 212(d)(5) (parolees) of the Immigration and Nationality Act.”
However, you may qualify for unemployment benefits if you were authorized to work in the U.S. for any period of time before your work authorization expired. You should speak to a lawyer before filing for unemployment benefits as an undocumented immigrant.
Can Undocumented Immigrants Sue Employers for Discrimination?
Yes. California and Federal anti-discrimination, retaliation, and harassment protections apply to undocumented immigrants. Immigrants can file a complaint or lawsuit against employers who engage in labor law violations.
Examples of discrimination, harassment, and retaliation include:
- Paying undocumented workers less than documented workers in the same or substantially similar positions, with the same qualifications and productivity;
- Firing a worker due to a disability or medical condition;
- Harassing a worker about their immigration status, race, color, religion, sexual orientation, or gender identity;
- Giving undocumented workers less desirable work or shifts than other employees of the same position due to their suspected immigration status;
- Withholding training, promotional opportunities, or career advancement from a worker the employer believes is an immigrant;
- Harassing or teasing an employee about their accent;
- Disciplining or terminating an employee for speaking another language or lacking fluency in English (unless speaking English is a business necessity);
- Making fun of or harassing an employee with stereotypes about their protected class or supposed immigration status;
- Terminating or demoting an employee for reporting labor law violations to the appropriate authorities;
- Terminating, demoting, or otherwise retaliating against an employee for filing a complaint or lawsuit against an employer.
Unfortunately, immigrants often face discrimination in the workplace. Studies show that roughly one in three immigrants face discrimination during the hiring process, and immigrant workers suffer from more workplace injuries and fatalities than native-born workers. An employment or immigration lawyer can help you verify whether the behavior you experience at work constitutes discrimination, harassment, or retaliation.
Can Undocumented Immigrants File Personal Injury or Employment Cases?
Yes. Undocumented immigrants have the right to seek legal counsel for personal injury and employment disputes regardless of their immigration status. However, it is worth noting that immigrants facing deportation do not receive court-appointed counsel – they must pay for an attorney if they wish to receive representation.
For example, if you suffer an injury while working, you can sue your employer for damages to obtain compensation for medical bills, lost income, pain and emotional suffering, and more.
Can Attorneys Refuse to Represent Undocumented Immigrants?
Public defenders CANNOT drop clients due to their immigration status. Additionally, due to attorney-client privilege, an attorney CANNOT report you to ICE for being an illegal immigrant.
However, it’s important to note that an attorney can request to withdraw from representing you. In California, an attorney can stop representing a client if:
- They have a “compelling reason” to do so involving criminal or fraudulent behavior on the client’s behalf. Being an undocumented immigrant is NOT a criminal offense or form of fraud.
- They can prove that you have purposefully misused a U.S. Visa, work permit, or other official documents in a fraudulent or criminal manner.
- The client acts in a “morally repugnant” or “fundamentally disagreeable” way.
If your attorney wishes to stop representing you, they must first inform you and the court. If the court does not believe your lawyer has sound reasoning, it can refuse the attorney’s request to withdraw.
Should I Tell My Lawyer I’m Undocumented?
Yes, you should tell your lawyer if you’re an undocumented immigrant. Your attorney should not provide you with inadequate counsel or discriminate against you based on your immigration status. Being honest with them can help them represent you more accurately.
Work with Attorneys Who Will Fight for You
At Wilshire Law Firm, we’re proud to represent immigrants who face discrimination, harassment, and retaliation in the workplace. We’ve recovered over $1 billion dollars helping injured parties and employees get the justice they deserve from insurance companies and corporations.
Work with a team ready to defend your rights. Contact us now or give us a call to receive your free, discreet consultation.
