Undocumented workers have right to earn prevailing wages

By Timothy Pratt (contact)

Monday, Feb. 18, 2002 | 10:43 a.m.

In a landmark decision for Nevada, undocumented immigrant workers who are hired on public works projects have the right to be paid prevailing wages, the state labor commissioner ruled last week.

The ruling, which observers said could help legal workers, resulted from a case in which five workers were awarded back wages after demonstrating that their employer used various schemes to cheat them out of their pay. The employer argued that they discovered the workers weren't authorized to work in the United States after hiring them, and that the workers had no right to collect wages.

"This decision sets a precedent in terms of undocumented workers in our state," Labor Commissioner Terry Johnson said Friday.

"As long as they are hired to work on a public works project, they cannot be told afterward that they don't deserve prevailing wages based on their immigration status."

In addition to requiring prevailing wages for undocumented workers, the decision is expected to be a boon to legal workers.

"The thing is, if state and federal governments don't take this position, it creates a readily exploitable labor pool for unscrupulous employers that brings down wages and benefits for those who have the right to work," said Michael Slater, executive director of the Las Vegas-based Interfaith Council for Worker Justice.

"So this decision really helps protect the legal worker, who otherwise would be competing against workers who are cheaper."

The ruling may even discourage employers from hiring undocumented workers -- if it is enforced, said Robert Correales, assistant professor of law at the University of Nevada, Las Vegas.

It will go into effect on the $2.5 billion spent yearly in Nevada on public works -- buildings, roads and highways built or repaired with state, county or local funds or sponsorship.

The state's prevailing wages, which differ for each trade, are set to establish uniform standards for contractors bidding on projects. The workers in the case that led to the ruling were carpenters, who are paid $35.38 an hour under current prevailing wages.

Tens of thousands of workers are employed in state projects, Johnson said -- an unknown number of whom are undocumented immigrants. At least half of the 850 wage-related cases before the Labor Commission involve Hispanic workers, some of whom alleged that employers threatened them with deportation if they complained about being paid less than prevailing wages, he said.

One method used to put undocumented workers on a job site is to hire a person with valid documentation, who then puts two or three others in his place, paying each less than the prevailing wage, Correales said. The employer gains more workers for the same salary and the person with the documents gets a percentage, he said.

"Unfortunately, there is a subset of disreputable employers who compete based on cheating workers instead of quality and skill," Slater said.

Slater said the decision is consistent with federal and state legislation that guarantees rights to undocumented workers.

The key is enforcement, Correales said.

"In practice, this is difficult, since every city, county or state agency would have to employ personnel to ensure the law is being followed," he said.

Johnson said the ruling has the force of law, but he expects it to meet future legal challenges.

"It may get sticky, since attorneys have argued before that ordering employers to pay undocumented workers is authorizing them to break the law," he said.

"But I say that when it's after the fact, or after the workers have been hired, then I'm not interested in where the people are from, but just if they worked and got paid."