Protections for Illegal Immigrants - Essay Example

? The Plight of Undocumented Workers and The Protections To Which They Are En d Illegal workers are in this country, and they often are subjected to abusive practices in the workplace. That said, the federal laws have many protections for documented workers. Documented workers are protected from workplace discrimination, from unsafe working conditions, and are entitled to a fair wage. The question is whether illegal immigrants are entitled to the same protections. The answer to this is yes - although the workers referenced in this project are in this country illegally, they still are entitled to the basic rights that all Americans are entitled to, including adequate pay, adequate housing, adequate working conditions, and protection against discrimination. Undocumented workers and their plight. Undocumented workers are increasingly subjected to a variety of injustices. Included in this is the fact that the undocumented worker pays into social security and medicare, yet does not receive the benefits from these programs. According to Porter (2005), undocumented workers pay a variety of payroll taxes which contribute to the overall solvency of both the medicare and the social security benefits, but, since they are undocumented, they are not entitled to collect these benefits. One of the reasons why they contribute, yet cannot collect, is that they get a fake social security number, therefore the employer must withhold payroll taxes for these workers. However, since they have a fake social security number, they cannot collect these benefits. Moreover, Porter (2005) states that, even if these workers were aware of what their employers withhold from them, many of them are not aware of the reasons why these wages are withheld. Even if they are aware that they are paying into social security and medicare, however, Porter (2005) indicates that many of them do not care that they will not be able to collect their benefits for which they paid, figuring that it is the penalty that they pay for being in this country illegally. Mehta (2002) further states that illegal immigrants suffer wage discrimination and work in unsafe conditions more often than documented workers do. They state that male undocumented workers suffer a pay discrimination of 22%, and female undocumented workers suffer a pay discrimination of 36%. This means that an illegal alien with the same education, work experience and language proficiency as a documented worker will make 22% less than that documented worker, if the worker is a male, and 36% less if the worker is a female. Moreover, Mehta (2002) found that the undocumented workers in his study are more liable to work in unsafe conditions than the documented workers in his study, and that the undocumented workers were less likely to have health insurance. Moreover, these workers also do not have access to medicare or medicaid, therefore they do not, by and large, have access to health care at all. As far as unsafe conditions go, undocumented workers are more likely to report that they operate machinery without proper training. They are also more likely, according to Mehta (2002), to report that they are working in unsanitary conditions, therefore they are more likely to get sick because they are working in these conditions. Mehta (2002) also states that undocumented workers are more likely to slip and fall on the job. And, if these undocumented workers do get hurt on the job, they are less likely to obtain worker’s compensation benefits, and, even if they apply for worker’s compensation benefits, they are less likely, than documented workers, to actually obtain these benefits. Lee (2010) states that illegal immigrants are also the target of discriminatory laws. He cites federal laws which state that illegal immigrants cannot access federal benefits, and state laws which states that illegal immigrants cannot access public schooling, either secondary, elementary or post-secondary. There was even a law in Texas, pending, which states that the children of undocumented individuals in the United States would not have birthright citizenship, which means that, even if they are born in this country, they cannot be citizens. Protections for citizens The above section shows that undocumented workers are routinely discriminated against, on the basis of their origin. Also, undocumented workers are more likely to be working in unsafe conditions. This section will detail the protections that documented workers have in the United States. Occupational Safety and Health Association Documented workers in the United States have a right to a safe workplace. The Occupational Safety and Health Association (OSHA) was implemented partially in response to the horrible working conditions that workers used to suffer under before these regulations were in place. For instance, in Upton Sinclair’s explosive expose of the Chicago stockyards, The Jungle, there were many instances where workers were working in conditions which were unsanitary and unsafe. In these stockyards, workers did not have adequate access to a bathroom, so men often urinated on the floor of the slaughterhouse. Moreover, these workers did not have proper ventilation, which means that they sweltered in the heat and there was not a way of dispelling the smell of offal from the animals. The work was dangerous, yet there was not protections for this. Plus, because worker’s compensation was not yet implemented, if a worker got injured, he did not get compensated, and if a worker got killed, their family was not compensated (Sinclair). In short, there were no protections for workers around the turn of the century, so the OSHA was partially designed to remedy this. The OSHA provides protections for workers. One of these protections is that workers cannot operate machinery without proper qualification, or a certificate if necessary. Workers are also entitled to operate in an environment that is sanitary, therefore all workplaces must meet a certain standard of sanitation. Another regulation associated with OSHA is that employers must report all injuries. The OSHA also protects workers from excessive chemical exposure. The OSHA conducts inspections periodically, particularly if there has been reports of unsafe working conditions. Whistleblower laws are also under the purview of the OSHA, as individuals who make a report about an OSHA violation are protected by these laws from retaliation (Occupational Health and Safety Administration). Anti-discrimination laws. In addition to being protected from unsafe and unsanitary conditions, workers are also protected from discrimination. In particular, workers are protected from being discriminated against on the basis of their race, sex or disability. For instance, workers are protected from discrimination based upon disability by the Americans With Disabilities Act (ADA). The ADA protects workers who are disabled from adverse actions based upon their disabilities. Such actions might include being fired, not promoted or not hired, because they are disabled. Other actions might include that the employer did not make reasonable accommodation for their disability (ADA). As an example of this, if an individual is in a wheelchair, and the employer is subjected to the ADA, in that the employer has 15 workers or more, than that employer must provide a wheelchair accessible bathroom, for this would be considered to be an example of a reasonable accommodation for the worker. Of course, if the individual’s disability completely prevents them from performing a job, such as an individual in a wheelchair applying for a job as a window washer, the potential employer would be exempted from the standards, as this disability goes to the heart of the employment in question. Documented workers are also protected from discrimination on the basis of their sex, race, ethnic origin or religion under the Civil Rights Act 1964. This means that an employer cannot use one’s sex, race, etc. against that person in hiring. This would encompass hiring, terminating, retention or promotion, just like with the ADA (Civil Rights Act 1964). Individuals are also protected from discrimination on the basis of age, under the Age Discrimination in Employment Act (ADEA). These discrimination laws also cover retaliation, which means that an employer may not act adversely to an employee on the basis of the fact that the employee reports a discriminatory act or environment. In addition, women are also protected by the Equal Pay Act of 1963. Under the Equal Pay Act 1963, women are entitled to make the same wages as a man, provided that the woman has the same qualifications, is working the same job, etc. (Equal Pay Act of 1963). Moreover, women are also protected by the Lily Ledbetter Fair Pay Act. This act protects women in that , before this legislation was signed, a woman did not have access to the courts if she found out about the pay discrimination after the statute of limitations had run. Since women often find out that they are being paid less than a man long after that woman received the first discriminatory paycheck, which was the period when the statute of limitations tolled, previously, then women were often precluded from suing on the basis of pay discrimination. Lily Ledbetter remedied this. Fair wage laws. In addition to being protected from unsafe working conditions and discriminatory practices, workers are also protected in that they are entitled to receive a fair wage. Specifically, workers are entitled, as of 2007, to a minimum wage of $7.25 per hour (Fair Minimum Wage Act 2007). Protections from abusive practices. What all of the above protections amount to are protection from abusive practices in the workplace. Employers have to provide a safe workplace, and they have to make sure that their employees are trained to use equipment. Employers cannot discriminate, in that they cannot pay a person less than another person, because that person is a different sex or different race. They have to provide sanitary conditions. They have to provide reasonable workplace accommodations for people who are disabled. They also cannot harass a worker on the basis of their sex or race, as this, too, is a part of the Civil Right Act 1964. In short, the American worker has a variety of protections. The question then becomes, and this question will be answered in the section below, what kind of protections does the undocumented worker have with regards to abusive practices? Protections for undocumented workers currently – what are they entitled to? Lee (2008) provides the best article about the illegal immigrant’s rights in the workplace. Lee (2008) states that, on the federal level, undocumented workers are not protected from discrimination and other practices, because Congress has passed laws regarding this. And the United States Supreme Court will defer to the Congress on this issue, because Congress has plenary powers to regulate immigration. Therefore, if the Congress passes a law that states that illegal immigrants are not entitled to protections, and they have done just this, according to Lee (2008), in the form of laws which limit illegal immigrants’ access to federal benefits and federal protections. Therefore, Lee (2008) concentrates on the states, and what protections the states have given to illegal immigrants. In particular, Lee (2008) examined the impact of state laws which restrict illegal immigrants from enjoying public benefits. He begins by examining the illegal immigrant in the context of the equal protection clause of the United States Constitution. Under this Equal Protection Clause, the legal immigrant is to be treated equally as the citizen, for immigration is one of the classes that the Court has decided is entitled to strict scrutiny. This means that any kind of practice that adversely affects the legal immigrant, and treats the legal immigrant differently than the citizen would be subjected to a heightened level of scrutiny, which also means, in turn, that the classification would be presumptively invalid. However, Lee (2008) also states that illegal immigrants are not privy to the same level of scrutiny. Specifically, any kind of adverse action that affects an illegal immigrant is only subject to rational basis review. This means that if the employer can show any kind of reason for their action, as long as that action is rational, then this action would be upheld. This, in turn, means that adverse actions against the illegal immigrant is presumptively valid. Granted, as noted above, this analysis applies to federal benefits, which means that illegal immigrants can be denied certain federal benefits. This is because the Supreme Court, in deciding that discriminatory practices against illegal immigrants is subject to minimal review, specifically note that these immigrants have no right to be here in this country, therefore they do not have the rights to protections. However, Lee (2008) states that this is improper, and that illegal immigrants should be protected by equal protection in the same way that legal immigrants are protected. That said, Lee (2007) also states that any kind of adverse action, under the current Supreme Court doctrine, taken against the children of illegal immigrants would be subjected to an intermediate level of scrutiny. This is a level of scrutiny that is between rational basis and strict scrutiny. So, Lee (2008) states that the children of illegal immigrants are afforded more protections than their parents, simply because the children are here through no fault of their own. Lee (2008) then goes on to note that the discrimination against illegal immigrants might be restricted to whether or not they are granted federal or state benefits, such as the right to obtain welfare or other options provided by the government. He states that, with regards to employment practices, illegal immigrants do have some rights, as they have been accorded, through courts, to rights regarding worker’s compensation benefits and also can week relief with regards to violation of federal labor protection statutes. However, it is unclear whether they have the same rights as legal workers in all cases. His analysis would state that should be the case. Lee (2008) cites different state and federal precedent cases that would underpin the idea that any kind of discriminatory practices in the workplace, or any abusive practices, would be illegal for illegal immigrants and legal workers alike. Therefore, under this analysis, illegal workers would have the same protections as legal ones. He cites one case as precedent, Moreau v. Oppenheim, which is a Fifth Circuit Court of Appeals case. In Moreau, the plaintiffs were illegal immigrants who sued on contract. The defendants claimed that the illegal status made the plaintiffs’ claims invalid. The Moreau court, however, stated that the illegal status alone did not make the contracts invalid. Lee (2008) states that part of the opinion indicated that the “outlaw” status of the illegal immigrant did not mean that they would be considered to be “outlaws” for every aspect of life. The Moreau case was also critical of the rational basis review that the Supreme Court afforded illegal immigrant cases, stating that, under the rational basis review, immigrants might not be entitled to police protection. Lee (2008) further states that another case, Montoya v. Gateway Insurance Co., which was a New Jersey Superior Court case, states that illegal immigrants are entitled to obtain coverage from their insurance policy for personal injury, and that their illegal status does not preclude this coverage. Perhaps even more relevant to the issue of employment is another case that Lee (2008) cites, which is the case of In Re Reyes, which was a Fifth Circuit Court case. In this case, the Reyes court found that the illegal immigrants would be protected by the Fair Labor Standards Act 1938 and the Migrant and Seasonal Agricultural Worker Protection Act (AWPA). This was remarkable, contends Lee (2008), because the AWPA specifically forbids contracts between employers and illegal immigrants. This means that, even though the AWPA law specifically forbids employers from hiring illegal immigrants, these illegal immigrants are still provided protections under this act. Lee (2008) also cites a number of state cases which held that illegal immigrants are protected by labor laws. Among these cases are a case in New York, Balbuena v. IDR Realty LLC. The holding of this case is that illegal immigrants are entitled to past wages and future loss of earnings for an employee who is hurt on the job. The case of Coma Corp. v. Kansas Department of Labor, which is a Kansas case, states that an illegal immigrant is entitled to compensatory damages for the failure of an employer to pay wages, along with the statutory punitive damages. The argument that the undocumented workers are entitled to the same protections that citizens are entitled to. It is obvious that documented workers are entitled to a variety of protections. It is less clear that illegal immigrants are entitled to the same protections. On the one hand, the Supreme Court of the United States has stated that discrimination against illegal immigrants are only subjected to rational basis, which means that the discriminatory practices are presumptively valid. On the other hand, there have been a variety of cases, both federal and state, that state that illegal immigrants may enforce contracts, may get worker’s compensation benefits, and may get back pay from employers. This does not say, however, that illegal immigrants have the same rights with regards to discriminatory practices in the workplace, or that illegal immigrants have the same rights with regards to having a safe workplace. However, the cases that are cited by Lee, specifically with regards to employment practices, would imply that illegal immigrants are protected by any kind of workplace abusive practices. Basically, the courts that have upheld damages against employers for not paying wages to illegal immigrants, or have upheld the rights for an illegal immigrant to receive worker’s compensation benefits, have decided these cases on the basis that the status of one being illegally here in this country does not mean that they have no recourse against being abused by others. This is why the courts have decided that illegal immigrants can, for instance, enforce a contract. To decide otherwise would allow the person making the contract to take advantage of the illegal immigrant, and this is unfair. This is the same rationale for the employer who attempted to not pay his worker because he was illegal. The courts have consistently held that, in essence, illegal immigrants are protected from abusive practices of all types. This would imply that illegal immigrants would also be protected by OSHA, the ADA, the Civil Rights Act 1964, the ADEA, and the Fair Wage Act. Therefore, any kind of protection that a legal citizen would have, with regards to employer abuse, is available to the illegal immigrant, under this analysis. Recommended legal strategy for domestic workers The best legal strategy for domestic workers would be to enforce their rights under the existing framework of protections that are available to all workers – the ADA, OSHA, etc. Because Lee (2008) indicates that even illegal immigrants are entitled to these protections, domestic workers can avail themselves of these protections. For instance, if there are OSHA violations, a domestic worker should contact the OSHA and explain what violations are occurring. This would mean that there would be an inspection of the premises, and the employer will be given a certain amount of time to attend to the problems and resolve them. If the domestic workers are not being paid a fair wage, then they should contact an attorney about this, who can bring the case into court. The same remedy would be available if workers are being discriminated against, harassed, etc. In short, illegal domestic workers should proceed with whatever complaint that they might have, the exact same way as a legal domest ic worker would proceed. Conclusion Illegal immigrants are protected by a variety of protection in the workplace. Specifically, there are laws which protect all workers – the OSHA, the discrimination laws and the wage laws. Federal and state cases would imply that all of these protections which are due to legal workers are also due to illegal ones. This is because, in certain instance, the status of illegal or legal is irrelevant. This is because, to hold otherwise, would mean that employers would have the ability to take advantage of weaker individuals. If illegal immigrants did not have any rights, then stronger people could make contracts, breach the contract, and the illegal immigrant would not have recourse. Of an employer could get away with not paying the worker at all. This would be a perverse result, therefore courts have stated that immigrants are entitled to many protections in the workplace. Because of this rationale, illegal immigrants are entitled to all protections in the workplace which are enjoyed by all other workers. Sources Used Americans With Disabilities Act. 42 U.S.C. § 12101(1990). Equal Pay Act 1963. Pub. L. 88-352. Fair Minimum Wage Act 2007. Pub.L. 110-28. Civil Rights Act 1964. Pub. L. 88-352 (1964). Lee, J. (2010) Unlawful status as constitutional irrelevancy: The equal protection rights of illegal immigrants. Golden Gate University Law Review39(1), 1-40. Mehta, C., Theodore, N., Mora, I. & Wade, J. (2002) Chicago’s undocumented immigrants: An analysis of wages, working conditions, and economic contributions. University of Illinois at Chicago Center for Urban Economic Development. http://www.gcir.org/node/331 Occupational Health and Safety Administration. Department of Labor Website. Retrieved from: http://www.osha.gov/ Porter, E. (2005, April 5). Illegal immigrants are bolstering social security with billions. The New York Times. Retrieved from http://www.globalaging.org/pension/us/socialsec/2005/illegal.htm Read More