Immigrant Workers’ Rights and Remedies

Immigrant workers, especially the undocumented and short-term guestworkers, face enormous obstacles in their efforts to enforce workplace rights. These workers are often their family's only source of support in a world of poverty and injustice. They arrive in the US isolated by language, culture and geography. And their immigration status can be used as a club by unscrupulous employers who wish to take advantage of them.

A 2002 U.S. Supreme Court ruling resulted in a storm of litigation around the country that has left our system of workplace protections in tatters. For example, undocumented workers are not entitled to compensation when they are fired in violation of their right to organize a union on the job. In some states, the right to workers' compensation has been curtailed for undocumented workers. And in at least one state (New Jersey), undocumented workers have no recourse for on-the-job discrimination.

The 180,000 low-wage temporary guestworkers in our country face equally steep barriers, arriving in the country in debt to labor recruiters and traffickers who often lie to them about what they will find here. These workers, frequently housed in isolated labor camps and denied by law the right to change jobs, fall victim to forced labor and labor trafficking.

Through litigation, policy design and support for organizing campaigns, NELP has been a national leader in developing strategies that support the rights of all workers, whether born in the U.S. or abroad. We do so out of the conviction that if labor rights are extinguished for some, those rights are degraded for all. And that if employers who violate labor laws get a free pass, then we only create a larger underground economy, which in the end hurts us all.

NELP's approach has several prongs:

  • We provide policy models for states agencies to establish a clear firewall between immigration and labor law enforcement, as has been done by the New York Attorney General, the California Legislature, and the Washington State Human Rights Commission.

  • We provide support to advocates seeking to keep immigration status out of the courtroom through legal analysis, training and intervention in key cases -- such as our amicus brief in Rivera v. NIBCO, and our manual, No Free Pass to Harass: Protecting the Rights of Undocumented Immigrant Women Workers in Sexual Harassment Cases.

  • We advocate for equal labor rights for guestworkers, as in our comments as part of the Low Wage Immigrant Worker Legal Network opposing changes to the H2B guestworker system that would reduce government oversight of the program.

  • We offer support and advice to organizing campaigns where immigration status might be used to retaliate against workers, or is being used to hold up settlement.

  • We make certain that immigrant workers have the identity tools they need to open bank accounts, drive cars and pay their taxes.

See also our work in the areas of Worksite Immigration Enforcement and No-Match, Human Rights Campaigns, Immigrant Workers' Health and Safety, and Enforcement of Workplace Standards. In addition to the resources listed here, NELP hosts the password-protected National Wage and Hour Clearinghouse at http://www.just-pay.org/.

For more information on our work in this area, please contact Rebecca Smith, rsmith@nelp.org.

Other key resources:

NLRB General Counsel, Procedures and Remedies for DiscriminatesWho May Be Unauthorized Aliensafter Hoffman Plastic Compounds, Inc. (Jul. 19, 2002)

U.S. Equal Employment Opportunity Commission, Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws (Jun. 27, 2002)

U.S. Department of Labor, Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastic decision on laws enforced by the Wage and Hour Division.

Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States(2007)

American Federation of Labor-Congress of Industrial Organizations

American Rights at Work

National Immigration Law Center