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Legal Rights of Undocumented Construction Workers

According to a 2020 report from the Center for American Progress, there are currently more than 7 million undocumented immigrants working in the United States. Of these workers, more than 1.4 million work in the construction industry, comprising 13 percent of all construction workers in the country.

When an undocumented construction worker is injured in a work-related accident, the situation can be very frightening. On top of dealing with a potentially serious injury and the related costs, the issue is made worse if the worker’s employer threatens to use their worker’s undocumented status against them. An undocumented worker may fear the chance of deportation or even criminal charges if they try to file a claim against their employer.

It is important for undocumented immigrants to know that they do have legal rights and protections under federal and state laws. Undocumented workers have the right to recover compensation in a personal injury lawsuit. Additionally, certain laws protect undocumented workers by prohibiting discrimination against any worker, regardless of immigration status. By understanding the ways in which they are protected under the law, undocumented workers can avoid being taken advantage of.

Federal Laws Protecting Undocumented Workers

The term “undocumented immigrant” may refer to an individual who has entered the United States illegally. Illegal means of entry include entering at any time or place not designated by immigration officers, eluding examination by inspection officers, or attempting to enter the country through the willful concealment of a material fact such as lying on a visa application or purchasing fake documents.

An undocumented immigrant can also be a person who entered the U.S. legally, but has since lost their legal status. For instance, a person who entered legally but stayed in the country beyond the time limit they were originally given. Once a person stays beyond their initial time limit, their presence in the U.S. becomes illegal. Undocumented immigrants have understandably felt like they have been subjected to unfair prejudices and derisive labels.

Despite their immigration status, undocumented individuals are still given employment rights under U.S. federal law.

The Immigration and Nationality Act (INA) aids undocumented workers by prohibiting the following:

  • Citizenship status discrimination in hiring, firing, or recruitment or referral for a fee
  • National origin discrimination in hiring, firing, or recruitment or referral for a fee
  • Unfair document practices in the employment eligibility verification (Form I-9) and E-Verify processes
  • Retaliation or intimidation

Citizenship status discrimination occurs when employers treat employees differently in hiring, firing, recruitment or referral for a fee based on the employee’s citizenship status. National origin discrimination is a similar form of discrimination in which an employer treats an employee differently based on the person’s actual or apparent national origin. Protection against unfair document practices means employers are prohibited from demanding more or different documents than necessary, requesting specific documents, or rejecting reasonably genuine-looking documents because of a worker’s immigration status. Retaliation or intimidation protection means that an employer cannot intimidate, threaten, coerce, or retaliate against workers for practicing their rights. For example, an employer cannot threaten or cause an adverse immigration event, like calling ICE, on an employee who is engaged in a workplace activity, like joining a union.

In general, federal anti-discrimination laws give rights to all workers, regardless of their citizenship status. Additional federal laws that prohibit discrimination against workers, including undocumented workers, include the following:

Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, gender, pregnancy, or national origin. The provision applies to employers with 15 or more employees.

Equal Pay Act of 1963 (EPA)
The Equal Pay Act is a federal anti-discrimination law that addresses wage differences based on gender, making it illegal to pay men and women working in the same place different salaries for similar work.

Age Discrimination in Employment Act of 1967 (ADEA)
The ADEA prohibits employment discrimination against individuals aged 40 or older.

Americans with Disabilities Act of 1990 (ADA)
Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities.

Undocumented workers should also be aware that they have the right to form and participate in labor unions, which is particularly useful in the construction industry where workers may face dangerous work environments. The National Labor Relations Act (NLRA) allows workers who are not government employees to organize a union, elect a union, and collectively bargain with employers. Undocumented workers are also able to engage in concerted activity to improve their working conditions. Concerted activities, such as speaking with other employees about wages or circulating a petition, cannot be used as a reason for an employer to fire or discipline an employee.

Undocumented Worker Rights In New York State

Certain rights given to undocumented workers vary by state. Thankfully, many states recognize that undocumented immigrants who work hard in their jobs every day deserve the same rights as others.

Right to Workers’ Compensation

In New York, both documented and undocumented workers are able to receive medical care and workers’ compensation if they are hurt in a work-related accident. This law not only allows undocumented workers to receive support but also deters employers from hiring undocumented workers to avoid paying for workers’ compensation insurance.

Workers’ compensation covers the following.

  • Medical care related to the worker’s injury
  • Cash benefits of two-thirds the worker’s weekly wage, up to a maximum
  • Travel expenses to and from medical appointments

The following individuals are eligible to file a New York workers’ compensation claim:

  • All employees of for-profit businesses
  • Most employees of non-profit businesses
  • Employees working in New York State
  • Employees do not need to be New York residents

If a worker is injured on the job, their first concern should be seeking medical care for their injuries. Next, they should notify their supervisors about the injury and explain what happened. Once their injury is recorded, the worker should file a C-3 form with the Workers’ Compensation Board, which can be done online. The process can be confusing, so it may be a good idea to seek the help of a lawyer who can serve as a legal guide.

Right to File a Personal Injury Lawsuit

In addition to workers’ compensation, undocumented workers have the right to file a personal injury lawsuit despite not being legally authorized to work in the U.S. In a 2006 joint appeal of Balbuena v. IDR Realty LLC and Majlinger v. Cassino Contracting Corp., the New York Court of Appeals had to determine whether an undocumented worker injured at a worksite due to Labor Law violations could recover compensation despite their legal status.

Ultimately, the Court ruled that the federal Immigration Reform and Control Act (IRCA) does not preempt NY State Law. The ruling noted that NY Labor Law, specifically sections 240 and 241, “makes clear the Legislature’s intent to achieve the purpose of protecting workers by placing ‘ultimate responsibility’ for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor.” Meaning, New York’s Labor Law is in place to protect all workers, regardless of their immigration status.

It is important to note that this ruling does not apply to every case. In a case where an undocumented employee submitted false documents when applying for the job and their employer sufficiently checked the documents and found them to be reasonably genuine, then the employee may not be able to recover compensation if they are injured on the job. This only applies to cases where the employer was unaware of their employee’s undocumented status. If the employer knew or should have known the worker was undocumented, then the worker is not excluded from recovering damages for a workplace injury.

Personal Injury Lawyers Who Will Help Undocumented Workers

Deciphering the rights of undocumented workers can be a complicated and intimidating process for those unfamiliar with U.S. law. Undocumented workers who have suffered an injury as a result of another party’s negligence do have a legal right to receive compensation for their damages, regardless of their immigration status. Any worker who has been injured can seek the help of a skilled attorney with experience in handling personal injury lawsuits.

The construction accident lawyers at Block O’Toole & Murphy are dedicated to helping injured workers obtain justice, whether the worker is documented or undocumented. They recognize the fact that all workers have rights and will fight on their client’s behalf to protect these rights.

Case results* for undocumented clients include:

To discuss your case with one of our lawyers, please call 212-736-5300 or contact us online.

*Prior results do not guarantee a similar outcome.

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