CALL 843-577-5000

Undocumented In The Workplace: A Balancing Act

Like anyone in the United States, immigrants have certain rights, even if they are undocumented. This extends to the right to work—but it can become very confusing to try and navigate the laws around staying employed, being paid, and collecting benefits. You do not have to put up with harassment or unlawful treatment in the workplace just because you are undocumented, and if you do experience it, you may wish to consult with an experienced attorney to help you decide where to go from here.

You Are Protected

The American Immigration Council estimates that approximately 5 percent of South Carolinians are immigrants, with roughly 38 percent of that amount identifying as undocumented. Immigrants play a major role in many of South Carolina’s most critical industries, including the fishing and forestry industry, where as many as 1 in 4 workers is an immigrant. However, it is sadly not uncommon for some employers—especially in industries where workers are seasonal or otherwise considered “disposable”—to mistreat non-citizen workers, which can veer into unlawful conduct.

Federal anti-discrimination laws protect every worker, regardless of their nationality or immigration status. Title VII of the Civil Rights Act of 1964 is the most often cited anti-discrimination law, which expressly prohibits unfair treatment based on ethnicity or national origin. In addition, the Immigration & Nationality Act (INA) itself forbids discrimination based on citizenship status or national origin in hiring, firing, and everything in between.

Difficult For Employers

The crux of much of the confusion surrounding undocumented workers is that in theory, the Immigration Reform & Control Act of 1986 (IRCA) makes it illegal to knowingly hire an undocumented worker—but once a worker is hired, they cannot be fired or retaliated against based solely on their immigration status. If, for example, you are hired after an employer fails to check your documents or otherwise discovers you are undocumented, you should not, by law, be working, but you still have the right to be free from negative employment action while you are employed.

If you have been fired and you suspect it is due to your undocumented status, your best bet is to seek out an attorney to determine how best to proceed. Undocumented workers cannot recover certain benefits like back pay or be reinstated at a job (because of the IRCA’s prohibition on knowingly hiring an undocumented immigrant), but they can recover damages under the Fair Labor Standards Act (FLSA), or in some cases, via workers’ compensation laws, depending on the specific nature of your situation. Regardless, trying to do it alone will lessen your chances of success in court.

Call A South Carolina Employment Discrimination Lawyer

Even undocumented people need to make money and provide for their families, and if you are just trying to do your job, your employer does not have the right to make your life miserable. Contact a South Carolina employment discrimination lawyer today if you fear you are being mistreated because you are undocumented in the workplace. Attorney A. Christopher Potts and the firm of Hitchcock & Potts have handled many of these matters and will work hard for you. Contact the office today to set up a consultation.

Leave a Comment