How can undocumented immigrants legally form a union?

The National Labor Relations Act of 1935 guarantees the right to organize for better pay and working conditions, and the Fair Labor Standards Act of 1938 guarantees minimum wage and overtime. These laws apply to most workers in the US— and not only to citizens. Time and again, the courts have interpreted the legal term “employee” to include undocumented immigrants working in the United States. (However, the NLRA does exclude agricultural workers, domestic workers, independent contractors, government workers, and some employers’ relatives.) In addition, the Supreme Court has consistently decided that (with a few exceptions, such as the right to vote or possess firearms) undocumented immigrants in US territory are entitled to the same fundamental constitutional rights as citizens. (For more on immigrants’ legal rights, click here.)

So while it is against the law for US businesses to hire undocumented immigrants, once they have done so, they are obligated by law to treat these employees fairly and pay them all that they are legally owed. States vary as to what legal remedies exist for workers who haven’t been paid minimum wage or overtime. In New York State, for example, the Wage Theft Prevention Act makes it easier for workers to sue for back wages and unpaid overtime.

Despite these protections, labor laws are often not enforced, and undocumented immigrants are vulnerable to exploitation at work and intimidation on and off the job, in addition to the threat of entanglement by ICE. The immigration reform bill passed by the Senate in 2013 included the POWER Act, which would protect employees that speak up about labor law violations from retaliation by their employers and from detention or deportation by the federal government. For more on the POWER Act and related legal and policy issues click here.

The UN’s Universal Declaration of Human Rights declares many labor rights, including equal pay for equal work, a wage that supports “an existence worthy of human dignity,” and the right to form and join a union to protect one’s interests at work.

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