Sometime in the 1750s Benjamin Franklin wrote lamenting the influx of non-Wasp immigrant settlers into colonial America, “Those who come hither are generally the most ignorant Stupid Sort of their own Nation.” Mr. Franklin’s caustic commentary shows how the topic of immigration has always been a heated one in this country. Hence, it is not surprising how immigrants often work in fear of being harassed and disparately treated because of their residency or immigration status. Fortunately, there is protection here in New Jersey for immigrant workers under New Jersey’s Law Against Discrimination (“LAD”). LAD states that an employer cannot discriminate based on race, national origin, religion, gender, age, disability, marital status, etc. Under the LAD, discrimination based on immigration or citizenship status is treated differently than national origin discrimination because the discrimination is typically based on the employee’s immigration status rather than the country where they originated from.
Although the LAD does not specifically protect employees from discrimination based on immigration and/or residency status, the Immigration Reform and Control Act (“IRCA”) does. 8 U.S.C.A. § 1324. ICRA protects workers from discrimination based on their immigration and/or citizenship status. IRCA makes it unlawful for an employer to discriminate against its employees because of their citizenship, immigration or residency status in hiring, firing, and/or recruitment. Id. IRCA also makes it unlawful for an employer to demand more or different documents that are legally acceptable for employment verification purposes. Similarly, an employer cannot refuse to accept documents that appear to be acceptable and are legally acceptable. Id. The IRCA further prohibits intimidation, threats, retaliation, or coercion against any employee who files charges. It also prohibits retaliation of those individuals who cooperate with an investigation, proceeding, or IRCA hearing. Id.
Individuals protected under the IRCA include citizens of the United States, permanent residents, lawful temporary residents, refugees, and asylees. However, the IRCA does not protect workers from discrimination and harassment who have unlawfully entered our country and/or are illegally employed in this country. In fact, the IRCA was the first federal law to deem it unlawful for employers to knowingly hire persons who are not authorized to work in the United States. It is also illegal under the IRCA to continue to employ an undocumented worker or one who has lost their authorization to work in this country. Consequently, the IRCA requires employers to verify each employee’s work eligibility and identity.
Undocumented workers are afforded some protection by employment laws. The Equal Employment Opportunity Commission (“EEOC”) is a federal agency that handles employees’ complaints of discrimination in the workplace. It was created to investigate complaints of employment discrimination. Undocumented workers are provided the same protection by the EEOC under federal anti-discrimination laws. Therefore, undocumented workers can follow the same process to file a claim with the EEOC as authorized workers for claims of harassment and discrimination. The EEOC will not, on its own volition, inquire into an employee’s immigration or residency status. The EEOC also will not consider an employee’s immigration when determining whether a discrimination claim as merit. In contrast, an employee’s status as an illegal worker does in fact preclude that employee’s unfair labor practices claims under the National Labor Relations Act (“NLRA”). Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
Under the LAD, undocumented workers are barred from recovering front pay (provable future lost pay post-trial) damages arising from their alleged discriminatory termination. Crespo v. Evergo Corp., 366 N.J. Super. 391, 399 (App. Div.), certif. denied, 180 N.J. 151 (2004). However, undocumented workers can recover damages arising out of statutory violations for “work already performed,” such as wage claims under New Jersey’s Wage and Hour Law (“NJWHL”) and/or the federal Fair Labor Standards Act (“FLSA”). Id. at 398. These claims would include recovery of unpaid minimum wages and overtime. Id. Unauthorized workers can also recover emotional distress damages and punitive damages. Unauthorized workers in New Jersey may also recover prevailing wages that were wrongfully withheld under the Prevailing Wage Act (“PWA”). Serrano v. Underground Utilities Corp., 407 N.J. Super. 253, 270 (App. Div. 2009). The potential status as undocumented or illegal workers should not bar these workers from recovering. Id.
Inquiries into immigration status often have a chilling effect on undocumented workers resulting in unreported violations of employment laws. Nevertheless, it is unlawful for an employer to report or threaten to report a worker to the Immigration and Nationality Service (“INS”) because the worker complained about unlawful discrimination in the workplace.
If you are a worker who believes you were discriminated by your current or former employer based on your immigration or residency status, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, we are dedicated to protecting the rights of New Jersey workers.