What Rights Do Illegal Immigrants Have regarding Wage and Hour Issues?


Sacramento, CA Moises is an illegal immigrant who has been working in California for many years. According to Moises, his former employer violated a number of California labor laws, including overtime and wrongful termination. As an illegal, does Moises have the right to file a California labor lawsuit? Employment attorney David Yeremian weighs in…

Moises worked as a cook at Mel’s Diner for six years before it was sold six months ago. The new owner asked him to continue working in the same position at the same rate: $12 per hour, 40 hours per week.

First California labor law violation: Moises says he typically worked 50 hours per week but he never got overtime pay.

“I asked the new boss about California overtime compensation but he told me they never pay anyone overtime,” says Moises. Other employees worked overtime but they didn’t get paid either, so I wasn’t singled out. The previous owner never scheduled us for more than 40 hours per week, but sometimes we would work an extra few hours and always get paid time and a half.”

Second California labor law violation: California wrongful termination?

Moises had a minor “incident” that triggered his termination. “One day I had a problem,” he says. “I was pulled over by the police and jailed overnight because I forgot my driver’s license - I had left it at home. My friend called my boss (I tried to call him first from jail) and told him what happened. The next day I showed up at work and he said, ‘I don’t need you anymore,’ and said I have too many problems. But I think it was because I asked for overtime. They said they have too many cooks but I know they don’t have enough cooks.”

Third California labor law violation: Not receiving last paycheck in a timely manner.

“I was fired one month ago and I still haven’t received this last paycheck,” he says. Moises went back to Mexico but his wife and two daughters, ages seven and three (they were born in the US), stayed in the US. “I sent my wife to the restaurant to get my check. My boss said he wouldn’t give it to her, using the excuse that he doesn’t know her, but that is not true.”

Moises, age 28, has been working illegally in California for the past 10 years. He is in the process of getting his green card. His wife is a US resident and she has applied for citizenship. “I gave my boss a fake social security number; it is a number I have used for the entire time I was in the US. I never had a problem with it. I bought it from someone on the street in Mexico for $80.

“My boss has taken advantage of me because I worked illegally,” Moises adds. “Everyone knows there are a lot of illegals in the US; illegals who want to move here to work and get a better life. I hope to return to the US when I am legal; right now I am trying to fix my status in the US. My family can visit me here but I don’t think I can go to the US for about a year. Meanwhile, I have a construction job here in Mexico City, but I would rather be a cook in California.”

LawyersandSettlements (LAS):

Do the above labor law violations apply to illegal immigrants, i.e., overtime violation, wrongful termination (not even sure if wrongful termination applies to any employee because California is an “at will” state) and not getting the last paycheck on the day of termination?

Attorney David Yeremian (DY):

Yes. According to the CA website of the California Department of Industrial Relations, “All California workers - whether or not they are legally authorized to work in the United States - are protected by state laws regulating wages and working conditions.” The website states that all California workers have the right:

• To receive a minimum wage of $8.00 per hour
• To earn overtime pay - with some exceptions - after working more than 8 hours/day or more than 40 hours/week
• To file wage claims with the state labor commissioner if they believe their employer has violated state wage laws
• To file workplace safety and health complaints with Cal/OSHA, the state’s workplace safety and health program
• To work in an environment free from retaliation for exercising their rights

LAS: Can Moises get a letter from a notary public stating that his wife can receive his last paycheck?

DY: A notarized authorization letter may work; but Moises’ employer is not obligated to give his paycheck to anyone other than him.

LAS: Is the employer in violation of CA labor law for hiring Moises with a fake security card?

DY: The Immigration Reform and Control Act, a federal law, makes it illegal for an employer to knowingly hire undocumented aliens.

LAS: Moises has a fake social security card. What rights does he have re: getting overtime and his last paycheck? Moises says he paid taxes from his pay stubs.

DY: See response to Question 1 above.

LAS: If Moises paid taxes, doesn’t he have a right to get his last paycheck?

DY: Yes, Moises has a right to get his last paycheck. In fact, pursuant to California Labor Code Section 201, an employer who discharges an employee must immediately pay all compensation due and owing.

David Yeremian is an experienced litigator and business counselor, and co-founder of Orshansky & Yeremian LLP. He has worked on a wide variety of litigation matters including employment. The employment discrimination lawyers in Los Angeles provide free consultations to discuss your case fully.

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  1. Les
    September 21, 2013
    Illigal Immigrants have no rights for overtime. First of all, they committed a felony crossing the border illegally. Second of all, they are not paying taxes to the federal Government which is another Federal Law violated Tax evasions. They are not paying into Social Security funds and working, another viloation. If they didn't come here illegally and came here thru a work visa, then they would have something to complain about. About Labor law violations, the employers should get nailed for hiring illegals and tax evasion, workman comp law violations etc etc. do we need to go on? If they will commit a crime to come to the US, then I can't trust them. Illegals have no respect or regard for the State and Federal laws, else they would have got a work visa, to make themselves legal. Next they will be paying Illegals unemployment insurance which they did not pay into. That is why CA and the rest of the US is broke, cause in other states, and not just CA, the Chinese are hiring illegal immigrants from NEW York. I know, I heard the owner of a business tell me that.
  2. phillip d steward
    September 15, 2013
    after 18 years of being an ascfme ocsea dues paying corrections officer in the state of ohio, I whistle blew on promotion discrimination because every captain and supervisors were just picked after being told to put in .all 0ver 6 feet tall 250 lbs.s plus and white with less then 7 years on the job and no degree, and no interviews were given eeo federal said I had no case the supervisor out o Indiana office. him also being over 6 foot tall 250 lbs. plus and white. 6mnths later a four month on the job 19 year old female herassed me while trying to help out with a downed vehicle denied me eintrance became frustrated and advanced toward me I reacted by grabbing her shoulders no one hurt, but was fired for first contact. I am a veteran of the army 54 years old and black,born here u.s, sandiego california and worked since I was 15 years old to date, my union denied me aca rules and refused medation in writting because I after a clean slate in my file on the special response team 16 years put my hands on a white girl and they don't tollerate that here in ohio, 08/27/2011 I haven' t found a job to date. so you think you have a problem/ denied unemployment by there director personnelly going on third year no income

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