Immigrant workers present a unique subset of workers in the United States. On one hand, immigrant workers make notable contributions to the American economy. More than three quarters of our agriculture workers and almost one third of construction workers are foreign-born, with the most recent Bureau of Labor Statistics (2016) describing immigrant workers as 16.1% of the American labor force. On the other hand, immigrant workers tend to be more vulnerable to labor abuse because of language barriers, cultural aversion to turning to authorities for help, and unfamiliarity with their rights as workers.
This know-your-rights series references Iowa and Nebraska law to educate the immigrant worker population and its allies on various topics, such as immigrant workers rights, ways to secure worker rights, sexual harassment and assault at the workplace, and how to make administrative complaints about violations. None of the information contained herein should be construed as individual legal advice but rather general education. Look to the end of each post for a description of the upcoming topic.
As an individual working in the United States, regardless of your immigration status, you have rights as a worker. Working without a work permit or lacking documented immigration status does not deprive you of your worker rights. These rights come from a combination of federal and state laws that set up a base-level standard for the working conditions that workers have the right to expect and demand. These rights include:
- The right to receive pay for labor. In Nebraska, you have the right to receive at minimum a wage of $9.00 per hour of work, and in Iowa, you have the right to receive at minimum a wage of $7.25 per hour. It is important to note that if you are tipped for your work (e.g. as a waiter or delivery driver) your salary might be lower than the minimum wage. However, if the tips you receive while working do not bring your hourly earnings to the minimum wage, then your employer must adjust your compensation to make up for the difference.
- The right to receive overtime payment. If you work for more than 40 hours in one week, you have the right to overtime payment, which means that you must be compensated at one and a half times your normal rate of pay. For example, if you earn $10.00 per hour and you work 45 hours one week, then you must be paid at $10.00 per hour for 40 of those hours and $15.00 per hour for the 5 hours you worked beyond the normal 40 hours.
- The right to receive payment on a regular, scheduled basis. You have the right to receive payment at a predictable or agreed upon time. An employer may not pay you whenever he/she decides simply on the basis of his/her will.
- The right to take breaks in certain situations. In Iowa, employers are required to allow for bathroom breaks, but no other breaks are required. In Nebraska, employers are generally not required to provide any breaks, but employers of assembly plants or mechanical workshops must provide workers with 8-hour shifts at least a 30-minute lunch break. In any state, if an employer chooses to give a break and it is only 20 minutes long or shorter, then the employer must pay for that break. This means that the time spent on break does not take away from work time used to calculate wages.
- The right to work in a discrimination-free environment. You have the right to work without suffering from discrimination based on your race, ethnicity, religion, sex, and nationality. This includes many types of discrimination (also known as harassment), such as being turned down for a job because of the color of your skin, being fired because you are pregnant, being called a racial slur, and being touched or talked to in a sexual way without your consent. Acknowledging this right, it is important to distinguish discrimination from an employer’s decision not to hire someone because or that person’s lack of work authorization. Employers have the duty to ask for proof of authorization to work, but they may only ask for this proof after deciding to hire you as part of the on-boarding process that includes filling out an I-9 form. If an employer asks for this information during the interview or before the decision to hire you, this inquiry could constitute a form of discrimination.
- The right to work in a safe environment. Employers must provide employees with a workplace free of known dangers, and they are required 1) to notify employees of the physical dangers to their health and 2) to meet certain standards for different industries. For instance, construction workplaces must provide training on safety at the workplace and make sure that employees are qualified to use the tools that they are using. As another example, if an employer employs cleaners to clean with harsh chemicals, that employer should provide Personal Protective Equipment according to the safety precautions of each chemical. Chances are that if you are interacting with a dangerous condition at work and your employer is not providing training and safety measures, your employer is likely violating the requirement to provide a safe workplace.
- The right to end work. If you want to stop working, but an employer will not let you (whether by force, threat, or other means), then that employer is very likely violating your right to end your employment.
- The right to receive workers’ compensation. If a worker is injured at the workplace because of the work and not the fault of the worker’s own conduct, then that worker has the right to receive compensation from his/her employer for that injury.
- The right to demand any of the rights above. Employees have the power to assert their rights, whether by making a formal complaint at the workplace through the employer’s procedure or by making a formal complaint to an authority that enforces these rights. This right means that employers may not fire, demote, or otherwise treat you aversely in retaliation for your choice to demand any of your rights. If you act to exercise and demand one of the aforementioned rights and you are fired, you may have experienced discriminatory retaliation and have the opportunity to report this violation of your right to be free of retaliation.
Depending on the specific work at hand, there may be even more rights that you could have as a worker. For instance, in Nebraska, non-English speaking workers at most meat packaging plants have the right to expect and demand a written contract in the language they speak in addition to being informed of working their conditions, given instructions, and told their rights in the language that they speak. These rights are more nuanced than the others listed above, though, and their application depends on certain statistical conditions at the workplace. If you feel as though any of your worker rights have been violated, you should find assistance as soon as possible, as the more time that passes after a violation of your rights, the more difficult it becomes to prove and to rectify that violation.
If you feel that any of your rights have been violated, ILC encourages you to demand your rights and to contact an attorney and/or advocate to help explore your options.
Coming soon, Part II, a discussion of proactive steps workers can take to help secure their rights…
This article was written under the Justice For Our Neighbors – Nebraska name. On January 11, 2018, the organization changed its name to Immigrant Legal Center.