being paid less than minimum wage; the number was 16.6 percent for Latinos (including both immigrants and people born here). Black workers, both U.S.-born and foreign-born, were even more likely to report minimum wage violations than foreign-born Latino workers. Some 25.7 percent of the authorized immigrants who were surveyed experienced minimum wage violations, compared to 36.7 percent for unauthorized workers.
The workers who suffered the most were undocumented women: 47.4 percent said they had been paid less than the minimum wage. (Undocumented women are also most likely to serve as childcare or home care workers, and these occupations were most likely to be associated with wage violations among those surveyed.)31
Do immigrants work more dangerous jobs?
Undocumented workers appear to have a far higher rate of fatal injuries on the job than other workers. Fatal workplace accidents jumped 72 percent for Latinos between 1992 and 2005, while the rate for other workers dropped by 16 percent; by 2005 the fatality rate for Latinos was the highest for any group of employees, at 4.9 per 100,000 workers. Although most Latinos are not immigrants, a special report in the Chicago Tribune concluded that the victims were largely undocumented immigrants.
A 2009 article in the journal Demography reached similar conclusions. Although foreign-born workers accounted for about 11 percent of workplace fatalities in 1992, they made up 18 percent by 2005, with about 960 deaths each year. The authors noted that the immigrants’ increased share in fatalities “coincide[d] with a surge of immigrant inflows, particularly of undocumented immigrants, in the wake of economic crises in Latin America.”32
Workplace fatalities continued to decline slightly for most workers after 2005, but the rate for immigrants was still at 18 percent in 2011. The great majority of the 843 immigrant workers who died that year were Latino, and it’s likely that most were undocumented. “As recession has taken hold, employers have tightened their belt,” Migration Policy Institute director Muzaffar Chishti told WBEZ radio in Chicago. “And many of the labor standards, especially related to safety, go out the window.” Chishti noted that undocumented workers are the most vulnerable, since they are less willing to speak up for their rights.33
An in-depth 2001 report in the Long Island daily Newsday suggested that the deaths of immigrant workers are also less likely to be investigated, especially if the workers are undocumented. The report charged that the government’s Occupational Safety and Health Administration (OSHA) failed to investigate 874 of the estimated 4,200 job-related deaths of immigrant workers between 1994 and 1999. A report by OSHA’s Office of the Inspector General disputed the charge but found that the agency needed to develop “a comprehensive strategy for reaching all non-English-speaking employees, including undocumented immigrants.” A 2013 study of construction workplace deaths in New York City, where 74 percent of fatal falls in construction involved “Latino and/or immigrant” workers, found that OSHA was “ineffective” and “understaffed because of inadequate funding.”34
Doctors and others who work with injured migrants say non-fatal workplace accidents are underreported, since out-of-status workers are afraid of losing their jobs or being deported. Dr. Eileen Couture, head of clinical care at Oak Forest Hospital in Cook County, Illinois, told the Chicago Tribune: “You say this [accident] has to be reported and they say, ‘You don’t understand, I need my job. You don’t understand, I have to feed my family.’” 35
Even when they do report an injury, out-of-status workers can’t count on getting help. Francisco Ruiz, an undocumented Mexican, was injured in 1997 in Charlotte, North Carolina, when a crane hoisting him collapsed; the injury left him partially paralyzed and unable to work. His employer’s insurance company, Companion Property & Casualty, refused to pay any compensation beyond his initial medical bills and fought him in court for nearly six years on the grounds that he was “illegal.” His case drew attention because he was one of the few undocumented workers who have managed to fight back and win; the insurance company ended up having to pay him $438,000.36
Are immigrants protected by labor laws?
Under existing federal and state laws, as the courts have generally interpreted them, all workers, including immigrants, have certain rights, whether or not they have the federal government’s permission to work here. Many workers don’t know their rights, however, or are scared to exercise them because of their vulnerable immigration status. Despite these obstacles, undocumented workers have successfully defended their rights through the courts, or through grassroots public pressure campaigns, with the help of workplace justice advocates.37
All workers have a right to be free from discrimination in the workplace, including discrimination on the basis of race, religion, national origin, language, or accent.38 All workers have the right to join a union, or to organize themselves in defense of their common interests. Most workers have the right to be paid minimum wage for the hours they have worked, plus overtime if they work more than forty hours a week. (There are a number of exceptions to federal minimum wage and overtime rights for some types of jobs. These exceptions aren’t based on immigration status, although some of the affected labor sectors like agriculture and domestic work tend to have a high proportion of unauthorized workers.)39
All workers have a right to a healthy and safe workplace. As of April 2013, twenty-eight states provided compensation to all workers injured on the job, regardless of immigration status; a few excluded the undocumented, and other states hadn’t confronted the issue. However, a 2008 survey of 1,432 workers in low-wage industries in New York City found that only 11 percent of those seriously injured on the job filed claims for the compensation to which they were entitled.40
Federal and state courts have generally upheld workplace rights for undocumented workers. For example, the courts agree that all workers should get compensation in cases of discrimination, and that employers who have violated wage or overtime requirements must compensate workers for the unpaid wages they earned.41
A number of judges have noted that it is unfair and harmful to all workers to allow employers to exploit undocumented workers and then escape their responsibilities in court by arguing that the workers’ lack of immigration status means they have no right to compensation. In June 2002, U.S. district judge Whitman Knapp of the Southern District of New York ruled that clothing manufacturer Donna Karan International Inc. was not entitled to learn the immigration status of a group of workers who were charging the company with maintaining sweatshop conditions. Knapp said the possibility that the information would be used to intimidate plaintiffs outweighed its relevance to the case.42 In a September 2002 case in Illinois, Rodriguez v. The Texan, a federal judge noted: “It surely comes with ill grace for an employer to hire alien workers and then, if the employer itself proceeds to violate the Fair Labor Standards Act … for it to try to squirm out of its own liability on such grounds.”43
But in a March 2002 ruling (Hoffman Plastic Compounds, Inc. v. NLRB) the Supreme Court seriously undercut one important labor right guaranteed in the 1935 National Labor Relations Act (NLRA)—the right of workers to organize.
The employer in the case illegally fired an undocumented employee named José Castro in retaliation for his efforts to organize a union. Previously the company would have been forced to reinstate Castro and pay him the wages he would have earned if he hadn’t been fired, but the Supreme Court ruled that since the worker was unauthorized, the company couldn’t reinstate him and didn’t need to pay him for the work he’d missed. “Back pay is the only out-of-pocket cost that an employer incurs by illegally firing a worker,” four labor law experts noted in April 2003. “After Hoffman, an employer who violates the [NLRA] does so without suffering any economic loss” if the workers are undocumented. This “means that one of the most effective deterrents to further violations is no longer available.”44
