Can My Employer Discriminate Against Me Because I Am an Undocumented Immigrant?

With immigrant rights at the forefront of recent political tension, many are left wondering what their rights are as undocumented immigrants. The short answer, with few exceptions, undocumented immigrants enjoy all the rights and remedies provided under the law.

Employers are required by law to refuse to hire, or terminate, an undocumented worker once they have evidence that they do not have valid work authorization. In other words, it is illegal under federal law for an employer to knowingly employ a worker that it knows is undocumented.

Therefore, if an undocumented employee is the subject of discrimination or retaliation, whether it be on the basis of race, color, religion, sex, sexual orientation, pregnancy, gender identity, national origin, age, disability, and/or genetic information, that undocumented employee may still have a viable cause of action to bring a claim against their employer. Similarly, the undocumented employee may still have rights if their employer treats them unfairly for engaging in “protected conduct,” such as FMLA leave, filing a workers’ compensation claim, or complaining of illegal work practices or pay violations. Employers cannot discriminate in hiring, firing, promotion, pay, or other terms of employment based on the above protected class and protected conduct. Accordingly, an employer cannot use lack of immigration status as an excuse, or “pretext,” to fire an employee, if that employer did in fact violate that employee’s rights.

Undocumented employees face great risks inside and outside the workplace. In the workplace, the greatest risk posed is that the employer may retaliate against the employee by reporting them to Immigration and Customs Enforcement (ICE). While this would be illegal retaliation on the part of the employer, the ramifications ultimately lie with the employee, as it could subject them to detainment or deportment. This could also lead to criminal charges if false information or papers were used when you applied for your job.

Contact an experienced employment attorney if you are an undocumented employee and feel as though you have been treated illegally in the workplace.