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My Boss Or Supervisor Is Treating Me Unfairly At Work, But I Do Not Have A Legal Immigration Status. What Can I Do?

Author: Employment Discrimination Attorney Alena Shautsova

It is unfortunate when people are taken advantage of by their superiors in America. It is even more unfortunate when they believe they must put up with this abuse because they are afraid of being deported, jailed or otherwise retaliated specifically because of their immigration status.

Let it be known, that those who lack a legal immigration status are not only human beings like the rest of us, but are protected by the same laws in the United States as its citizens when it comes to Unfair Labor Practice Proceedings. The National Labor Relations Act is clear in its effect to protect all statutory employees, whatever their immigration status may be.

When an issue of immigration status is raised during the investigations or proceedings the NLRB (National Labor Relations Board) assigned representative in the Division of Operations-Management must be made aware of the possible implication of immigration status affecting the ability to litigate or settle a potential claim of unfair labor practices. The representative is not only required to provide technical assistance and discuss the possibility of additional remedies but will also determine whether interagency engagement will assist in litigation or settlement and coordinate the agency’s response to these issues. Thus, if the act is violated by an employer, the regional office in charge of investigating your claim will make its determination of said act regardless of current immigration status.

Most employers will try to raise the infamous defense “Company ABC was motivated by the need to comply with immigration laws,” do not falter. This is a scare tactic used by many employers to scare a complainant into withdrawing their complaint and never coming into contact with, or mentioning the companies name ever again.

The key word used in this defense is motivation. Motivation of termination, suspension, demotion, etc. If an employer was motivated by different reasons, such as asking to be compensated for overtime not paid, inquiring as to why your employer is paying you below minimum wage, declining sexual advances of your superior, etc., an employee may bring lawsuits based on other laws that protect employees from discrimination, such as Title VII or New York State Human Rights Laws.

It is important to know that for certain situations a person without valid immigration status may qualify for a T or U visa. The law provides protection for those who cooperate with the law enforcement and are not afraid to speak up. In addition, a prosecutorial discretion may also be available for those who act as plaintiffs or witnesses in employment discrimination litigation.

Moreover, a person with a temporary employment authorization (an asylee, a person in a conditional permanent resident status, a person on OPT) cannot be discriminated against either. Under the U.S. laws, an employer cannot require an employee to present specific documents to prove employment eligibility. An employee can choose from a list of acceptable documents, which ones to present. In a case when an employer demands specific documents: let’s say a U.S. passport or a permanent resident card, an employer can be punished by the U.S. government as it is discrimination based on alienage.

04 March 2015
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