A Long, Long Way From Home: Current and Potential Protection for Workers Regardless of Immigrant Status

A recent report in the New York Times uncovered rampant wage theft and numerous work hazards in the nail salon industry. The report says that the industry flies under the radar of wage departments and other enforcement agencies, causing the low-wage workers to pay the brutal price. In New York City, the nail salon capital of the country, the Times investigation spurred action from the New York State Labor Department, which inspected 29 salons and found a whopping 116 wage violations. In addition to being paid nothing or next-to-nothing, the workers, according to the report, are often subject to discriminatory “caste” systems in the workplace and forced to pay for training. Even worse, they are exposed to toxic chemicals, causing high rates of asthma and other lung diseases, skin disorders, miscarriages and birth defects. The report finds that these workers often feel trapped in their jobs because they are undocumented and have no other options.

For victims of predatory practices like these in the salon business or any other industry, there are laws in place that offer protection. The Fair Labor Standards Act (FLSA), as well as its Minnesota counterpart, set minimum wage rates that employers must pay, and dictate when overtime must be paid. The Minnesota Fair Labor Standards Act also restricts when employers can take deductions from employee paychecks. Protecting workers from unsafe working conditions is the federal Occupational Safety & Health Act (OSHA), which also has a parallel Minnesota law. Title VII and other federal and state laws prohibit discrimination in the workplace. The FLSA, OSHA, Title VII and their state counterparts all protect workers from retaliation when they complain about work conditions. Lawmakers are also starting to pay closer attention to the particularly hazardous nature of nail products and other personal care products. Senators Diane Feinstein (CA) and Susan Collins (ME) recently introduced the Personal Care Products Safety Act, which would subject personal care products to review by the Food & Drug Administration.

The immigrant status of an employee, which often presents practical challenges to seeking enforcement, should not legally prevent employees from seeking relief under these statutes. Courts have generally found these laws to apply to employees regardless of immigrant status. For example, in Lucas v. Jerusalem Café, the Eighth Circuit Court of Appeals held that the federal Fair Labor Standards Act applied to “unauthorized aliens,” a position in line with the Secretary of Labor and other courts. Under Title VII, many courts have found that undocumented workers have standing to pursue discrimination claims under the law, although the scope of available remedies is unsettled. And some plaintiffs’ attorneys, including Nichols Kaster, have had success in protecting their clients’ immigrant status from discovery during litigation and therefore avoiding the adverse consequences of immigration laws.