As one might imagine, undocumented immigrants are not, in theory, supposed to work while in the United States. However, many employers hire them anyway, for a variety of reasons. And many are then surprised when federal and state laws protect their rights on the job. While the state of South Carolina has not as of this writing passed any regulations aimed specifically at helping undocumented workers, there are federal regulations that include undocumented workers rights under their proverbial umbrellas.
Why Hire Undocumented Workers?
Employers, despite knowing the risks and the potential penalties, routinely hire undocumented workers. Many have faced very few repercussions for their breaches of immigration law. While many times an undocumented person may present identification that passes the employer’s scrutiny, other times certain businesses—hospitality and landscaping are among the most frequent offenders—outright hire undocumented people because they will generally do any job they can find. Because there is widespread poverty in Mexico, especially in Northern Mexico, many people cross the border in search of any kind of work, no matter how dangerous or degrading.
Because so many are so desperate, employers are generally able to hire them and refuse to deliver what they would be required to provide to citizen workers—for example, workers’ compensation, breaks, overtime pay, and the right to complain and organize under the National Labor Relations Act (NLRA). If a worker complains, the employer can simply threaten them with deportation, or at the very least, with a call to Immigration & Customs Enforcement (ICE). It is a situation in which an employer has all the leverage, so even if undocumented workers rights exist, they may not feel as if they have rights that they can validly exercise.
Government Fines & Worker Complaints
Life can be difficult if one is undocumented in South Carolina. It is worth noting that as of the most recent obtainable data’s collection, South Carolina fines employers the lowest amount if an undocumented immigrant is severely injured or dies on the job at their business: $1,688. South Carolina also has one of the highest surveyed figures in the country for the number of undocumented immigrants too afraid to speak or file complaints about unacceptable working conditions. In citizen workers, such conditions would often constitute constructive eviction (in other words, making a person’s job so dangerous and so hard that they feel they have no choice but to resign), but often undocumented workers are unfortunately assumed to have ‘asked for it’ or that they should be grateful to be in the U.S. at all. It can qualify as an invidious form of discrimination, to force a group of people to work in squalor while another does not.
While enforcement is very lax, there are penalties if a business is found to have knowingly employed undocumented workers (or if they were negligent in their efforts to verify immigration status). Fines start small, at a few hundred dollars for each undocumented worker discovered, but they can escalate to $6,000-$10,000 per worker, if three or more offenses have occurred. Punishing those who hire the undocumented, especially in many cases when the immigrant just may be looking for work, can be an effective tool if it can be kept from being used as a tool for retaliation.
Contact A Knowledgeable Attorney
While immigration law is a federal discipline, it is important to engage an attorney who is familiar with what is going on locally, since events in your area can affect how the law is applied. Attorney A. Christopher Potts and his Charleston, SC employment discrimination firm can help answer your questions about undocumented workers rights. Contact the office today to set up an initial consultation.