Do you Employ an Undocumented Worker?

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While it is common for South Asians to hire gardeners, cleaners, and other household help, often these individuals are hired without any inquiry into their legal status in the United States. What happens when someone you hire is undocumented (not legally authorized to work in the United States)?

The Immigration Reform and Control Act of 1986 makes it illegal for employers to knowingly hire or continue to employ undocumented workers. Nonetheless, approximately 5% of workers in the United States are undocumented.

As many employers continue to hire undocumented workers in order to cut costs, the legal ramifications are often misunderstood.

Myth: Undocumented Workers Don’t Have the Same Rights As Documented Workers

With a few exceptions, undocumented workers are afforded many of the same legal rights and remedies provided under both Federal and State laws, such as:

• The right to be paid a minimum wage, which is currently $7.25 an hour. Many states also have their own minimum wage laws, in which case a worker who is subject to both is entitled to the higher of the two wages.

• The right to be paid overtime for any week in which they work more than 40 hours. Overtime is 1½ times their regular wage. It should be noted that domestic service workers who reside in their employers’ residences are exempt from overtime pay requirements under federal law, but not minimum wage requirements.

• The right to receive workers’ compensation where the employer is required to obtain such insurance under state law. Workers’ compensation allows a worker, who is injured or becomes ill at work, to apply to receive part of their wages for their injury or illness-related medical expenses.

Penalties for Employing An Undocumented Worker

An employer who knowingly hires or continues to employ an undocumented worker can face civil penalties ranging from $100 to $10,000, and/or criminal penalties, including imprisonment for up to six months.

Protecting Yourself: Hiring Safeguards

All U.S. employers are required to complete a Form I-9 for everyone they hire. The employer should examine the prospective employee’s identity documents, determine whether they “reasonably appear to be genuine,” and record the information on the Form I-9. The Form I-9 is not filed with any government agency, but must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. government officials.

Priyanka Menon Wolan, Esq. is an attorney specializing in immigration law in Los Angeles, CA. Please call (323) 825-1653 or email pwolan@wolanlaw.com

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