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Undocumented Workers Rights At Their Workplace

The Supreme Court in United States v. Texas, rendered a split decision (4-4) on the expansion of Deferred Action for Childhood Arrivals program (DACA+), as well as the Deferred Action for Parent Accountability (DAPA). DACA+ would have expanded the population eligible for the DACA program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010; it would have also extended the period of DACA and work authorization from two years to three years. DAPA authorization would have allowed parents of American citizens and lawful permanent residents to remain in the United States without fear of deportation, if they lived  in the United States continuously since Jan. 1, 2010, up to the present time. However, because of the tie in the Supreme Court, both programs will be put on hold, and DHS will not accept any new DACA+/DAPA applications. The original DACA/DAPA programs are unaffected by the ruling and will remain in place.

Under 8 U.S. Code § 1324a, employers have a legal authority to terminate employees who do not have proper work authorization. Disclosures to an employer of the intent to apply for lawful status, if undocumented should be exercised cautiously as it is unlawful for an employer to knowingly continue to employ an undocumented immigrant (8 U.S. Code § 1324a). When applying for status it is important to note that all employees are entitled to a job verification letter, or their individual W2, without the need to provide the employer a reason (26 CFR 31.6051-1).

Undocumented workers are also protected under Title VII of the Civil Rights Act of 1964 which does not allow for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. (Emphasis Added). Workplace discrimination occurs when an employer mistreats or displays prejudice towards an employee because of a protected status, such as race or  national origin. Further Title VII bars employers from firing an employee because of a protected trait (e.g. national origin) and then claiming that the termination occurred due to the employee’s undocumented status. Additionally, under Federal Minimum Wage Law, 29 U.S. Code § 206 an employer is bound to assure that all undocumented workers are paid at least a minimum wage of $7.25 and overtime. In the state of Florida, the current minimum wage for the year 2016 is $8.05 an hour.

Despite the ongoing injunction against the implementation of DACA+ and DAPA, being undocumented does not necessarily translate into being without rights and legal protection. Both the Federal Minimum Wage Law and Title VII of the Civil Rights Act of 1964 apply to all employees irrespective of citizenship status. However, because employers do possess the right to terminate employees who are undocumented, it is best to seek professional legal advice from an attorney if one is concerned about any potential repercussions. Through such consultations, undocumented employees can learn further about their legal rights in order to make decisions that are beneficial to themselves as well as the larger community of undocumented employees.