Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, November 15, 2013

Does My Employer Have To Pay Me Even If I'm Illegal?

I received this question from a reader:
I'm in the process to get my green card. I worked for a guy for few weeks. He knew that I didn't have my EAD by that time. He doesn't want to pay me. I have been trying to get my payment over 2 weeks. Yesterday he sent me a text saying "go f**k yourself. if you contact me again I will notify the authorities" What can I do?
The quick answer is that, yes, your employer has to pay you even if you worked without the proper permit or are in the country illegally. If you are a foreign worker in the U.S., you have some hoops to jump through to work legally. Still, that doesn't excuse your employer from paying you for work performed. That being said, wage theft among undocumented workers is very common.

The United States Department of Labor has a program called "We Can Help" specifically directed at helping undocumented workers get paid. The Fair Labor Standards Act, which requires payment of minimum wage and overtime, applies to legal and illegal workers alike.

Undocumented workers, however, will not be able to recover back pay for time not actually worked or be reinstated to jobs if they sue for discrimination, unfair labor practices, or under other employment laws. While employers still can't discriminate based on race, age, sex, etc. the remedies undocumented workers can receive under many employment laws are limited.

Even though undocumented workers have legal rights, filing suit or complaining to the Department of Labor can be risky. There have been reported cases of undocumented workers who stood up to thieving employers only to face deportation. Employers who use this strategy put themselves at risk. Homeland Security is cracking down on employers who hire undocumented workers. Employers who break the law face sanctions including jail time. You might point this out to an employer who tries to blackmail you out of your pay.

Some Florida counties have wage theft laws that also protect undocumented workers. Employers can face double or triple damages if found to violate these wage theft laws. Many states and local governments have additional protections for employees whose employers don't pay wages when due.

If your employer is stealing your wages, contact the Department of Labor or an employment lawyer in your state to discuss your rights.

1 comment:

  1. Just as an FYI, if an employer threatens deportation or the use of law enforcement to intimidate or prevent someone from speaking out regarding the labor violations, it could be considered witness tampering or obstruction of justice. If this happens and you are undocumented, you may be eligible for immigration relief as well.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.