Protecting The Immigrant Workforce From Exploitation In The Trump Era

President Trump’s stance on immigration is not just affecting immigrants from the predominately Muslim countries subject to his executive order attempting to restrict their entry into the United States, or our Hispanic neighbors to the South of his proposed multi-billion dollar wall. Its chilling effect is finding its way into our workplaces, where some employers are taking advantage of the anti-immigrant fire the Trump administration is fueling, in an attempt to avoid paying workers, specifically undocumented ones, for work they performed.

Our firm has seen a disturbing trend recently, in cases where we represent home health workers here in Minnesota. These workers provide basic care for some of the most vulnerable members of our community–the elderly, disabled and infirm. They work long hours for pay that barely exceeds the minimum wage, providing in home care such as bathing, grooming, toileting, and transferring, taking clients grocery shopping and to appointments, and performing cooking and light house work. They also act as companions while performing this work, caring for those who often are alone and forgotten by the rest of society. In response to recent lawsuits to recover unpaid overtime, some of these home health providers have taken the position that they do not have to comply with the minimum wage and overtime laws for undocumented workers. They have threatened to report their immigration status to the authorities if they pursue the wages they were unlawfully denied.

Our country has prided itself on providing all individuals with basic employment rights, and the safety to redress wrongs forced upon them by unscrupulous employers without retribution because of their immigration status. To that end, laws specifically enacted by Congress afford the protections of our minimum wage and overtime laws to undocumented workers.

Good and sound policy reasons have been recognized for providing these protections to employees and enforcing these obligations on employers. First, we are not a country of sweatshops, where employers are allowed to take advantage of their employees by forcing them to work in inhumane conditions for subpar pay. Second, requiring an employer to pay its workers consistent with the minimum wage and overtime laws does not effectively condone the employment of undocumented workers. As articulated by the Second Circuit Court of Appeals, “It merely ensures that the employer does not take advantage of the violation by availing himself of the benefit of undocumented workers’ past labor without paying for it in accordance [with the law].” Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219 (2d Cir. 2006). Third, it would be unfair competition to permit businesses that hire undocumented workers to avoid the wage law obligations its competitors are following. Fourth, an employer’s refusal to pay consistent with the law, unfairly shifts the cost of providing for the welfare of these undocumented workers from the employer who received the benefit of the work performed, onto the public.

Courts and the United States Department of Labor have repeatedly recognized the long standing public policy of extending wage and hour rights to all individuals regardless of immigration status. It is “essential to achieving the purposes of the [law] to protect workers from substandard working conditions, to reduce unfair competition for law-abiding employers, and to spread work and thereby reduce unemployment by requiring employers to pay overtime compensation.” See Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944); see also Godinez–Arroyo v. Mukasey, 540 F.3d 848, 850 (8th Cir. 2008). Furthermore, chilling these workers’ rights to minimum wages and overtime compensation is counterproductive to government efforts to discourage employers from hiring these workers in the first place.

While these principles are longstanding and have been enforced by our courts and the labor department for years, the Trump administration and the new labor department it seeks to put into place are putting these principles at grave risk. Unscrupulous employers must be stopped from violating the law and then riding this anti-immigrant wave to escape the consequences.

At Nichols Kaster, PLLP, we will continue to fight for the rights of all individuals, regardless of immigration status, as all employees deserve to be paid fairly for their work performed.

By Partner Michele R. Fisher