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TheHartfordHelp - March 28, 2017

A Colorado catering and special events company has agreed to pay four undocumented workers from Mexico and one from Guatemala and their attorneys $200,000 to settle a lawsuit based on allegations of failing to pay minimum wage and national origin discrimination and harassment.

The plaintiffs' allegations state that the employer would make the undocumented employees work off-the-clock over 100 hours a week without overtime and below the minimum wage. It also states that the defendants yelled, cursed and berated the plaintiffs.

The employer denies all the allegations made in the complaint. According to the attorney representing the workers, his office frequently receives calls about employers treating undocumented workers unlawfully.


Commentary

Undocumented workers are protected under equal employment and labor laws the same as documented workers. Employers that treat or compensate undocumented employees differently are liable under the law.

The question is whether a societal bias exists that employers who knowingly employ undocumented workers do so to exploit those workers, no matter how they are treated or paid? If that bias exists, right or wrong, undocumented workers present a substantially greater litigation risk than documented workers simply because of their status as ineligible to work in this country.

To avoid charges of exploitation, it is critical that employers be able to prove that they believed all their present and past workers are permitted to work legally in the United States. To do so employers must keep all their I-9 information to show that all necessary employment documentation was provided.

Employers cannot ask for more proof of legal status other than what is required under federal law, especially from applicants based on country of origin, accent, race or color. 

If you're unsure if your current HR program is in compliance, let DDM help. Schedule a complimentary review with a  risk advisor today.

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