Content Courtesy of Brian Mittman, Esq.
The news headlines have been filled with stories about immigrant workers lately, especially in light of the many undocumented workers who are being deported. It has long been felt that undocumented workers who have been in the country for a long time would get leniency, but that does not seem to be the case.
In Virginia, there are state laws that take precedence over federal laws when it comes to immigrant workers and it is in a worker’s best interests to stay informed about their rights and how the laws affect them.
Read below to learn more about the rights of immigrant workers in Virginia. You can also check out some of our other immigration law resources or speak with one of our Virginia immigration lawyers to learn more about your legal options.
Undocumented Workers In The U.S. and Virginia
As of 2014, the number of undocumented workers in the United States had reached eight million. That number represents five percent of the total employed and unemployed workforce in the country. In 2015, there were 499,540 non-citizens living in the state of Virginia.
The Pew Research Center lists Virginia as one of the six states to see the sharpest increase in undocumented immigrants from 2009 to 2014. Since that time, the number has plateaued and remained relatively stable.
To go along with that population of undocumented workers in Virginia, there are also 510,086 immigrant workers who have become naturalized citizens. Many undocumented workers throughout the country take jobs that many naturalized and natural born American citizens will not take. Much of the seasonal farm work and maintenance work done in the hospitality industry is carried out by undocumented workers. Despite their illegal status, undocumented immigrants represent a very important part of the American workforce.
Rights of Immigrant Workers in Virginia
Naturalized citizens and immigrants with their proper working papers in place are offered the same working rights as natural born citizens. But the climate for undocumented workers is much different according to state laws and federal laws.
In Virginia, undocumented workers are allowed to file claims against employers for discrimination, unsafe working conditions, or any other type of workplace violations without fear of being deported. It is illegal to hire undocumented workers in Virginia, but once they are hired they must have access to the same workplace protections other workers have.
While it is illegal for an employer to call the Immigrations and Customs Enforcement (ICE) authorities on undocumented employees who do file a complaint, it can happen. Once ICE gets involved, the undocumented worker may have to face deportation or other criminal charges.
The Immigration Reform and Control Act (ICRA)
In 1986, President Reagan signed the Immigration Reform and Control Act (ICRA) that was intended to offer amnesty to undocumented workers and put them on the path towards becoming naturalized citizens. It was created for two primary reasons:
- To stop employers from exploiting undocumented workers because the workers constantly lived under the fear of arrest.
- To stop employers from bringing in more undocumented workers to do the jobs American citizens would not do for well below the minimum wage.
While the federal government was hoping the ICRA would eliminate the importation of undocumented workers, the real effects were not quite as stark. While it was recorded that legalized workers were able to see a significant raise in wages and at least 33 percent of those eligible for citizenship achieved it, the problem for undocumented workers still exists around the country.
Minimum Wage Rights
The discussion of pay for undocumented workers brings state laws and federal laws into the spotlight. It is illegal for any employer in any state to hire undocumented workers, but once those workers have been hired they are entitled to all of the same benefits all other workers get under federal law. This includes the federal right to be paid minimum wage for any job done. However, the minimum wage discussion gets a bit complicated because that is actually a state’s domain.
According to Virginia state law, any worker who is lawfully or unlawfully employed by an entity is entitled to the minimum wage. The state of Virginia even covers farm workers by stating that any farm that employs at least three full-time workers, documented or undocumented, must pay no less than minimum wage.
Worker’s Compensation Benefits
Each state has its own set of laws when it comes to workers compensation for immigrant workers. For example, the workers comp laws in Virginia are different than the workers compensation laws in New York and other states.
When talking about worker’s compensation benefits for undocumented workers in Virginia, only state law applies. For a long time, the laws in Virginia stated that undocumented workers could not utilize the worker’s compensation system if they were injured. But since the federal law states that undocumented workers should have access to all workplace safety benefits, Virginia businesses were open to being sued by injured undocumented workers. The solution that is currently in place states that undocumented workers in the state of Virginia who are injured are allowed access to limited worker’s compensation benefits. Undocumented workers in Virginia can receive medical care, but they cannot receive any lost compensation unless they are deemed to be completely disabled.
Undocumented workers in Virginia do the jobs that many American citizens prefer not to do. Their legal status makes their life a constant process of looking over their shoulders, but undocumented workers do have some rights when they are employed by a Virginia company.
Brian Mittman is a managing partner at The Disability Guys. He is experienced in workers comp, social security and personal injury law.