DO ILLEGAL IMMIGRANTS HAVE RIGHTS IN THE WORKPLACE?
Submitted by Scholz Loos Palmer Siebers Duesterhaus Attorneys
The debate over the illegal immigration “crisis” and what the federal and state governments should, must or can do to eliminate the crisis continues non-stop. A primary driving force to the debate is the assertion that illegal workers are taking jobs away from American citizens, which especially strikes home in a time of national economic distress and high unemployment. In theory, this situation should not even exist. Since 1986, the Federal Immigration Reform and Control Act has prohibited employers from hiring undocumented aliens, a/k/a “illegal workers.” Employers must now complete and keep the “Form I-9 Employment Eligibility Verification” for every employee. Potential employees are required to produce one or more original documents from a specified list as proof of identity and eligibility to be employed (i.e. citizenship or legal alien status). The completed I-9’s are subject to occasional review and audit by government investigators. Nevertheless, some employers may still find the potential financial advantage from hiring illegal workers to be worth the risk of discovery and criminal prosecution.
Barring limited exceptions, the average workplace is subject to a wide variety of federal and state laws and regulations creating employee rights involving wage rates, hours of work, over time, civil rights, health and safety. Employer violations of these laws and regulations can be enforced by individual employees, employee representatives, like unions, and/or specific government agencies, like EEOC, OSHA, or the federal or state departments of labor. Do these types of rights also apply to illegal workers? The answer is “yes,” for the most part, especially in Illinois.
In 2009, an Illinois Appellate Court ruled that the Illinois Workers Compensation Act applied to injured employees, regardless of their immigration status. The court based its decision on the definition of “employee” in the Act, which contained the phrase “including aliens.” The court also found that nothing in the existing Federal Immigration Reform and Control Act precluded a state from applying its worker protection laws to illegal workers. As a result, an illegal worker employed in violation of federal law was eligible to receive workers compensation benefits, including an award for permanent total disability. The same reasoning would also seem to allow illegal workers to benefit from such laws like the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act. The operative definitions of “employee” in all of these laws focus on doing work for an employer, not the immigration status of the worker. In the federal sphere, a variety of federal courts in Illinois and other states have ruled that illegal workers are protected by and can enforce the Federal Fair Labor Standards Act (governing wage rates, hours of work and overtime pay) and the employment anti-discrimination provisions of the federal civil rights laws, for example, for similar reasons.
In light of the ongoing national debate, is there some rational legal or public policy basis for these rulings? According to the courts, these cases make sense for two basic reasons. First, the statutory schemes creating the wide range of workplace rights and requirements have been in ongoing statutory development since the Great Depression. Judges are loath to depart from the express language of statutes constantly being reviewed, revised and adjusted by the legislature, even if the result is unpopular at the moment. Second, the decisions are consistent with current public policy of controlling illegal workers by penalizing employers who violate the immigration laws. All of the workers protection laws impose a cost on the employer in the form of higher workers compensation and liability insurance premiums and deductibles, interests and penalties imposed by government enforcement bodies, and the like. These additional costs increase the risk of loss to employers who don’t comply with the federal immigration laws and help reduce or eliminate the potential financial incentive to hiring illegal workers in the first place. The fact that illegal workers may benefit as the flip side to increasing the employer’s risk is almost beside the point.
Joseph A. Duesterhaus
Scholz, Loos, Palmer, Siebers and Duesterhaus LLP