OSFEL Andrade, an immigrant from Mexico, worked in the shipping department of Terra Universal, a laboratory equipment manufacturer in Fullerton, California when immigration agents conducted a worksite raid on June 29, 2010. During the raid, ICE agents arrested 43 workers and placed them in deportation proceedings.
Andrade was not arrested that day, but instead of remaining hidden from authorities, he agreed to serve as a named plaintiff in a class action case against his former employer. The case seeks back wages for years of unpaid wages, exploitation, and discrimination on behalf of hundreds of workers.
After Andrade joined the lawsuit, associates of his former employer attempted to pressure him to drop out of the case. Andrade refused. Shortly thereafter, ICE agents arrested Andrade at his home, and placed him in immigration detention, where he was held for three weeks until released on bond. Evidence indicates that Terra Universal informed ICE of Andrade’s immigration status in retaliation for filing the lawsuit.
After Andrade’s arrest by ICE, two of the other named plaintiffs in the lawsuit subsequently withdrew from the case. Andrade, however, has remained in the case, despite the fear and emotional distress caused by his employer’s retaliation. His courage has earned him the respect of his co-workers and community members, and he was recently honored with the Freedom From Fear Award, in recognition of the significant risk he has taken to confront injustice on behalf of immigrants in the United States. The above story is taken from a report by the National Employment Law Project (NELP), a national advocacy organization for employment rights. The report entitled Workers’ Rights on ICE: How Immigration Reform Can Stop Retaliation and Advance Labor Rights, detailed the plight of undocumented immigrants, who suffered employer retaliation, when they tried to assert their right to proper wages, meal and rest breaks, and a safe working environment.
Federal and state employment laws protect all workers regardless of immigration status. These laws include the right to prevailing minimum wage, overtime pay for working more than 8 hours per day or 40 hours per week, meal breaks and rest breaks, a safe and healthy work environment, and protection against employer retaliation. California law specifically provides that in enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of employer liability.
However, undocumented workers themselves will not come forward to complain for fear of being deported because of their status. Employer retaliation using immigration status as a weapon is a reality that needs to be dealt with. The above story of Mr. Andrade is one of the very few with a potential happy ending. But until the law on immigration is overhauled to provide additional protections to the undocumented, workers and their advocates need to be creative in seeking remedies and upholding the rights of the undocumented in the workplace.
The undocumented may obtain help in the workplace if there is a documented employee who initiates a class action against an employer who fails to pay the full wages required by law. If the unlawful practice by the employer is committed against other employees, a successful class action can result in obtaining a common fund that benefits other employees. One benefit to filing a class action is that it minimizes the risk of retaliation against unnamed members of the class.
Even if a class action is not filed against an employer, a private attorney general case may still proceed under the Private Attorney General Act. This law was enacted to maximize compliance with California’s labor laws. Instead of the state agency pursuing penalties against an employer, the law gives a private citizen the right to pursue these penalties on behalf other aggrieved employees. In addition, the employee who filed the lawsuit can be paid 25 percent of any penalties that can be recovered against the employer.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum – a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: wage and hour (overtime) litigation, serious personal injuries, wrongful death, insurance claims, and unfair business practices. His law firm is currently class counsel to thousands of employees seeking payment of wages in California courts. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. Inquiries to his law office are welcome and at no cost.
