Tuesday, Sept. 15, 2009 | 2 a.m.
A class-action lawsuit recently filed by the undocumented employees of a local cleaning company underscores that workers who are in the country illegally have many of the same workplace rights that U.S. citizens have.
That’s particularly important in Nevada because illegal immigrants make up an estimated 12.2 percent of the state’s workforce, according to a 2008 Pew Hispanic Center study.
But the idea that undocumented workers have rights is also controversial. Members of the “What part of illegal don’t you understand?” lobby have consistently expressed indignation about workers in such cases receiving anything but a deportation order.
Nevada Labor Commissioner Michael Tanchek says his agency is firmly resolved to remove what would otherwise be a “perverse incentive” for employers to hire and take advantage of undocumented workers by paying them less than the minimum wage — or nothing at all.
“We’re not going to let them play that game,” the labor commissioner says.
Tanchek points out that state law was amended in 2003 to specify that employers’ treatment of employees must comply with existing laws, no matter whether those workers are “lawfully or unlawfully employed.”
The change came about “to address the issue of undocumented immigrants,” Tanchek says.
In 2002, his predecessor had issued the landmark ruling that all workers hired on public works projects deserved prevailing wages, whether in the country legally or not.
Tanchek recalls the case of a mine worker in Elko who filed a complaint seeking about $1,200 in back wages. The worker also faced deportation. Tanchek’s staff told the worker the state agency could send the money to Mexico if the case was resolved in his favor. As it turns out, the state moved faster than the federal government and the check was cut before the worker’s flight to Mexico left the ground.
Angela Morrison is now legal director of the Nevada Immigrant Resource Project at UNLV’s Boyd School of Law, but she served as the first local trial attorney for the federal Equal Employment Opportunity Commission, from 2006 to last year. She says her office would see cases that invoked “an intersection of state and federal laws” because the same workers would be victims of more than one type of discrimination.
“Undocumented immigrants are ... ripe for abuse by unscrupulous employers who use it (their status) as a threat,” Morrison says.
Tanchek’s agency doesn’t keep statistics on immigration status, precisely because the status doesn’t matter when it comes to resolving a complaint, the director says.
But historically, he says, immigration status has been mentioned as investigators interview workers, “enough so that we know it’s part of the reality of the job market in Nevada.”
Many more undocumented workers might not even complain. Investigators have heard workers say that their friends aren’t getting paid but are afraid to enter a government office, Tanchek says.
“We tell them, we only take claims, we don’t keep track of status,” he says.
Of course, for workers to file complaints, there need to be jobs, and recent economic trends may make this less of an issue.
Larry Dizon, chief investigator at the labor commissioner’s Las Vegas office, says he hasn’t heard complainants mention immigration in a case crossing his desk for months.
That is likely attributable to many illegal immigrant workers, especially in construction, having left the state or entered the largely invisible, part-time and occasional workforce.
Still, Morrison insists the issue won’t go away until the federal government resolves the fate of millions of undocumented immigrants. When the economy picks up, jobs will return.
Then, she says, one truth will remain: “They don’t have authorization to work, but they’re here.”