Need Legal Help for Your Business? Find It Here
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Need Legal Help for Your Business? Find It Here

When my husband I decided to start a business, we didn't think about the legal aspects of doing so. We didn't realize that purchasing business insurance, getting building permits and making investments all required some type of legal advice. But after speaking to a close friend, who also happens to own a small business, we contacted a business attorney. Now, we have the legal smarts to make the best decisions for our business, as well as the legal representation in case something happens to our company. I hope that you find my blog helpful and informative for your own business. It's a great resource for finding the legal advice, resources and guidance you need to get your company up and running.

Need Legal Help for Your Business? Find It Here

Immigration Status In Flux? What Are Your Employee Protections?

Ronnie Mills

If you're residing in the United States illegally, you may be loath to "rock the boat" when it comes to your employer's abuse of wage and hour laws or other federal and state employee protections. However, according to at least one recent case, you might have a valid action for visiting someone at Goldberg Katzman PC and see if you have experienced employment discrimination if you've been fired or  due to your immigration status. Read on to learn more about potential employment protections for illegal immigrants or undocumented residents.

What employment protections exist for non-citizens?

Title VII of the Civil Rights Act of 1964 establishes a number of federal protections for employees nationwide. Among these protections are safeguards against discrimination on the basis of race, color, ethnicity, national origin, sex, or religion. If an employer or business declines to hire an individual, creates or condones a hostile work environment, or fires an individual on the basis of one of these protected characteristics, it can be subject to severe financial penalties -- or in some cases, even forced to re-hire the terminated employee. 

In addition to the federal protections of Title VII, many states have enacted their own employment laws and regulations that expand these protections to discrimination on the basis of sexual orientation or gender identity, immigration status, and other factors. Although states are free to expand their definitions of "protected" employee classes, they are unable to invalidate any part of the protections established under Title VII.

Although one may assume these protections apply only to U.S. citizens, this is not always the case. If you are residing in the U.S. legally but temporarily -- for example, under a K1 work visa -- the protections of Title VII will also apply to you. These protections apply to lawful permanent residents as well. 

Are the same protections available for undocumented immigrants?

One issue that remains somewhat unclear is the extent to which these employee protections apply to individuals who are unlawfully residing in the U.S. -- or those whose immigration status is still in flux. These groups have historically been subject to numerous abuses by unscrupulous employers who are aware that their employees' immigration status and fear of deportation leaves them loath to report any such abuses to the proper authorities.

Historically, "illegal aliens" have often been excluded from the protections of Title VII and other federal employment laws (with the exception of wage and hour laws under the Fair Labor Standards Act).

After the President's November 20, 2014 issuance of an executive order stopping the deportation process for millions of undocumented immigrants, many employment attorneys argued that those affected by the executive order were now considered "legal" for Title VII purposes -- permitting them to sue their employers or potential employers for a variety of labor and employment violations that would otherwise have gone unchecked.

On February 16, 2015, a federal judge issued an injunction declaring this executive order unconstitutional and preventing its enforcement until the U.S. Supreme Court can speak on the issue. Ten days later, a federal judge in New York issued a landmark ruling, refusing to dismiss a case brought by employees alleging that their employer's policy of hiring only U.S. citizens or lawful permanent residents was discriminatory. 

Although this doesn't mean that the employees' lawsuit will ultimately succeed, it is a clear message that the portion of Title VII preventing discrimination on the basis of race, ethnicity, and national origin applies to more than just U.S. citizens and lawful residents.

With these very recent and somewhat conflicting rulings, it is unclear who currently has standing to sue for violations of Title VII. However, it can be reasonably argued that anyone impacted by the President's November 20 executive action may now no longer be considered an "illegal" resident or undocumented immigrant -- and can therefore file a lawsuit against his or her employer if a violation of Title VII is believed to have taken place.