Immigration Status and Workplace Rights: Unpaid Wages, Discrimination and Threats to Report You

Pay for Work You Already Did

The Fair Labor Standards Act sets the minimum wage and overtime for employees, and the Department of Labor enforces it for work that has been performed. An employer that owes you wages for hours already worked generally cannot avoid paying them because of your status. Read our guide to recovering unpaid wages and our overview of wage theft.

Harassment and Discrimination

Title VII of the Civil Rights Act, in 42 U.S.C. 2000e-2, bars discrimination based on race, color, religion, sex and national origin by employers with 15 or more employees. The EEOC takes the position that these protections apply to workers whatever their immigration status. Harassment over an accent, ancestry or the country you come from can be national origin discrimination. See our guide on English-only rules and national origin.

Threats to Report You

The FLSA makes it unlawful to fire or punish a worker for filing a complaint about pay, in 29 U.S.C. 215. Courts and agencies have treated threats to contact immigration authorities after a wage or safety complaint as a form of retaliation, because the threat is meant to make a reasonable worker stay silent. Our article on workplace retaliation explains how to show the link between a complaint and the threat.

What the Law Does Not Cover

Status can change some remedies. For example, a 2002 Supreme Court decision, Hoffman Plastic Compounds v. NLRB, held that the labor board could not award back pay for time after an unlawful firing to a worker who was not authorized to work. That decision concerned one remedy under one statute. It does not erase wages already earned or the right to complain about discrimination, and the rules on other remedies differ by claim and by state.

Discrimination in Hiring and Paperwork

A separate law, 8 U.S.C. 1324b, prohibits employers from discriminating based on citizenship status or national origin in hiring, firing and recruitment, and from asking for more or different documents than the I-9 form requires because of where a worker is from. The Justice Department's Immigrant and Employee Rights Section enforces it, and the deadlines are short.

Common Situations

• Paid in cash with no records

  Pay in cash does not remove the right to minimum wage and overtime. Your own notes can be strong evidence of the hours you worked.

• Told to stay quiet or be reported

  Save the message or write down the exact words, who said them and when. A threat made after a complaint is the key fact in a retaliation claim.

• Asked for extra documents

  Being singled out for more paperwork because of your accent or ancestry can be unlawful even when the employer says it is following the rules.

• Fired after asking about pay

  Termination after a pay complaint can be retaliation. See our guide on being <a href="/blogs/fired-for-complaining-about-unpaid-wages-flsa-retaliation-rights" class="text-primary underline">fired for complaining about unpaid wages</a>.

What to Save

• A daily log of hours

  Start and end times, breaks and the tasks you did, written when it happens.

• Any proof of pay

  Pay stubs, checks, bank deposits, payment app history or a note of each cash payment.

• Messages and witnesses

  Texts, voicemails and the names of coworkers who heard a threat or saw the hours you worked.

• Employer details

  The business name, address and the name of your supervisor, which helps identify who employed you.

Free Case Review

Which claims fit your facts depends on the employer, your state and what happened. Our team can review your situation at no cost, if you are eligible.