What legal rights do I have as an undocumented worker?
With just a few exceptions, undocumented workers enjoy all of the legal rights and remedies provided by both Federal and California law. (The exceptions to this general rule, mainly in the areas of unemployment insurance and union organizing, are discussed below.)
As an undocumented worker, do I run any risks if I choose to file a claim against my employer?
Yes. A risk in filing an employment claim as an undocumented worker is that your employer may retaliate against you. Retaliation means that your employer takes or threatens to take some action against you or reports or threatens to report you to ICE (“Immigration and Customs Enforcement”) because you filed a claim against the employer. Such retaliation is illegal, however, under both Federal and California law. In fact, employers who retaliate against you because you complained about their unlawful working conditions are breaking the law a second time.
The risk of retaliation is one faced by all employees, documented and undocumented, who raise a legal complaint against their employer. Depending on the law your complaint falls under, you can file a retaliation claim with the Federal or California agency that administers the law, or bring a retaliation-based claim in court.
Undocumented workers face an even greater risk when their employers retaliate against them by reporting them to ICE. Even though the employer is acting illegally if it does so, in general ICE is allowed to follow up on the employer’s report. If ICE does follow up, it can try to detain or deport you. Worse, if you used false information or papers when you applied for your job, you may be charged criminally, fined, deported, and/or prevented from ever returning to live and work in the U.S. These serious penalties may apply even if you are married to a U.S. citizen, have U.S. citizen children, or have lived in the U.S. for many years.
If you are undocumented, the choice of whether to go ahead with a complaint against your employer is one you must make only after very careful thought, and after obtaining competent legal advice from attorneys knowledgeable about both employment law and immigration law. Many undocumented workers, given the possible consequences of being reported to the immigration authorities, or of having their lack of status revealed in the litigation process, quite understandably choose not to complain about their working conditions. On the other hand, many undocumented workers have successfully brought claims, especially with the support of competent attorneys or advocates. In both cases, we strongly recommend talking to an immigration attorney about your individual immigration history to help you evaluate your risk should your employer retaliate against you.
If I am thinking about filing a discrimination, state disability, workers’ compensation, labor, health and safety, or wage claim, what should I do to protect myself?
Before you file a claim, you should call the Workers’ Rights Clinic or a community legal based organization that works with undocumented immigrants. These organizations will have, or may know of, advocates who can properly assist you in your decision to file a claim, and may assist you in making a claim should you choose to do so. As noted above, you should receive competent legal advice from attorneys who are experts in both employment law and immigration law before you make a decision to go ahead with a claim.
Because you are at risk of employer retaliation, you should consider certain factors in making a decision to file a claim. These include: whether you have ever received threats from your employer; whether your employer knows that you are undocumented; whether your employer has ever reported or threatened to report any of your co-workers who enforced their rights or disagreed with the employer; and whether you believe that your employer may actually go so far as to report you. If you fear retaliation for filing a claim, especially if your employer has threatened retaliation against you or others in the workplace, we strongly recommend talking to an immigration attorney as soon as possible to help you evaluate your risk according to your individual immigration history.
In any case, you should never discuss your immigration status at work or carry any false documents with you. Also, you should seek legal advice before disclosing to anyone whether your documents are false.
What is Deferred Action for Labor Disputes (DALE)?
For more information about this immigration benefit, including information on how to apply, see our Fact Sheet Deferred Action for Noncitizen/Undocumented Workers in Labor Disputes. Importantly, the new Trump presidency beginning on January 20, 2025 has sparked increasing concerns and questions about the future of DALE. While the information we provide in this fact sheet reflects our current understanding of the status of the DALE process, conditions may change and this information may become outdated.
This means it is even more vital you consult with an immigration attorney before requesting DALE.
As an undocumented worker, what are my rights under wage and hour laws?
Undocumented workers generally have the same wage and hour rights as other workers. These laws establish your right to minimum wage, overtime pay, breaks, tips, and other forms of wages. For example, an employer cannot refuse to pay you by saying that you should not have been working in the first place because you have no “papers.” (But if you have been fired because you have a wage complaint, it’s less clear whether you can recover the income you lost due to being fired.) If you fear retaliation for bringing a wage claim, especially if your employer has threatened retaliation against you or others in the workplace, we strongly recommend talking to an immigration attorney as soon as possible to help you evaluate your risk based upon your individual immigration history.
Filing a Wage Claim: If you choose to file a wage claim, you can either file with the California Division of Labor Standards Enforcement (also known as the “Labor Commissioner”) or the U.S. Department of Labor. Neither of these agencies should question you about your immigration status or report your lack of status if it is somehow revealed. You can also sue your employer in court. For further information, see our Pay and Hours Fact Sheets.
As an undocumented worker, can I receive workers’ compensation benefits?
Yes. All workers who are injured on the job are eligible for workers’ compensation benefits in California to cover the cost of medical treatment and, in some cases, lost wages. However, undocumented employees may not be eligible for some job retraining benefits. In addition, if you have been fired because you have a workers’ compensation claim, it’s less clear whether you can recover the income you lost due to being fired. If you fear retaliation for filing for workers’ compensation benefits, especially if your employer has threatened retaliation against you or others in the workplace, we strongly recommend talking to an immigration attorney as soon as possible to help you evaluate your risk based upon your individual immigration history.
Filing a Workers’ Compensation Claim: If you choose to file a workers’ compensation claim, you should contact the employer to get and file a claim form. If your employer refuses to give you a claim form, you should contact the state Workers’ Compensation Appeals Board (WCAB). If your claim is approved, you may be entitled to reasonable medical expenses, disability benefits and rehabilitation benefits.
For more information, see our Workers’ Compensation Fact Sheets.
As an undocumented worker, what are my rights under health and safety laws?
Health and safety laws protect all employees regardless of their immigration status. Therefore, undocumented workers have rights to information regarding their health and safety rights. They have the right to refuse unsafe work if they reasonably believe it would create a real and apparent hazard to them or their co-workers. They also can file health and safety complaints with the California Occupational Safety and Health Administration (Cal/OSHA). If you fear retaliation for making a health and safety complaint, especially if your employer has threatened retaliation against you or others in the workplace, we strongly recommend talking to an immigration attorney as soon as possible to help you evaluate your risk according to your individual immigration history.
Filing a Health and Safety Claim: If you choose to file a health and safety claim, you should contact Cal/OSHA. The agency will then investigate for health and safety violations and your employer may be forced to stop its illegal practices. Cal/OSHA should not question you about your immigration status or report your lack of status if it is somehow revealed.
As an undocumented worker, can I organize or participate in a union?
Yes. The National Labor Relations Act (NLRA) protects the right of most workers, including those who are undocumented, to organize a union, elect a union, and collectively bargain with employers. It also allows you to engage in “concerted activity” to improve working conditions for all employees, even if there is no union yet. Concerted action occurs when two or more employees act, with their employer’s knowledge, to improve working conditions on behalf of all employees. Concerted action may also occur if even one employee acts on behalf of others.
If you are a domestic worker, agricultural worker or work for the government, you are not covered by the NLRA. In California, however, agricultural workers have the right to organize and participate in a union regardless of their immigration status under the California Agricultural Labor Relations Act.
If your employer violates the NLRA by retaliating against you for your union activity or by committing another unlawful labor practice, however, your remedies will be limited because of your immigration status. In particular, if you were unlawfully fired, you will not be entitled to “back pay” (wages for the time you were unemployed because of the firing). Also, you will not be able to get your job back because, as an undocumented worker, you do not have legal work authorization.
Filing a Union Activity Claim: If you choose to file a union activity claim, you should contact the National Labor Relations Board (NLRB). The NLRB should not question you about your immigration status, or report your immigration status if it is somehow revealed. If you fear further retaliation for bringing forward a claim, especially if your employer has threatened retaliation against you or others in the workplace, we strongly recommend talking to an immigration attorney as soon as possible to help you evaluate your risk according to your individual immigration history.
For more information on your right to organize a union, see our Fact Sheet The Right To Organize and Join a Union.
As an undocumented worker, can I collect unemployment insurance?
No. To collect unemployment insurance, workers must be both “able to work” and “available for work.” The California Employment Development Department (EDD), the agency that decides who has the right to unemployment insurance, has determined that undocumented workers are not “available for work” because they are not legally eligible for work.
As an undocumented worker, can I collect State Disability Insurance?
Yes. The California State Disability Insurance (SDI) system is funded by employee contributions and is designed to protect unemployed and disabled persons against loss of wages when they are unable to perform their normal work because of illness or injury. If eligible, currently you may receive around 60% to 70% of your pay for up to 52 weeks. With the passage of SB 951 in 2024, beginning on January 1, 2025, people on leave from work who apply for SDI will receive 70-90% of their regular income for claims starting in 2025.
Employees, including undocumented employees, have the right to benefit from the money they have contributed. Undocumented workers who have suffered from a non-work-related disability, and who have paid into the state disability system may be entitled to receive at least as much as they put into the system.
For example, consider an undocumented worker who loses her job and becomes too depressed to work as a result: She does not qualify for Unemployment Insurance because she is undocumented. But she may qualify for SDI. (Note that workers need proof of their medical condition from a doctor to qualify for SDI.)
To determine if you have paid into the system, you should look to see if SDI insurance was deducted from your pay stub. If you were paid in cash and not given a pay stub, then you probably are not eligible for SDI because it is unlikely that any deductions were made from your wages. Unlike unemployment insurance, a worker does not have to be available for work to receive SDI.
For step-by-step instructions on how to apply for these benefits, see our Undocumented Workers’ Guide to Applying for California Disability Insurance & Paid Family Leave. That fact sheet explains that even though an online application is available, undocumented workers should apply for SDI using a paper application. The EDD should not question you about your immigration status, or report your lack of status if it is somehow revealed.
As an undocumented worker, can I collect state Paid Family Leave benefits?
Yes. You may be eligible to receive California Paid Family Leave (PFL) if you are missing work to care for a seriously ill family member. Parents can also receive PFL to bond with a new child in their family. If eligible, currently you may receive around 60% to 70% of your pay for up to 8 weeks. With the passage of SB 951 in 2024, beginning on January 1, 2025, people on leave from work who apply for PFL will receive 70-90% of their regular income for claims starting in 2025. If you work in San Francisco, your employer may be required to provide you additional compensation, up to 100% of your pay.
As part of your PFL application, you will need a healthcare provider or local healthcare official to certify your family member’s health condition, or you will need to provide proof of your relationship with the child (for example, a birth certificate or adoption paperwork).
More information may be found on the EDD website by clicking here. If you work in San Francisco, you may also find more information about San Francisco’s Paid Parental Leave Ordinance by clicking here.
For step-by-step instructions on how to apply for these benefits, see our Undocumented Workers’ Guide to Applying for California Disability Insurance & Paid Family Leave. That fact sheet explains that even though an online application is available, undocumented workers should apply for PFL using a paper application. The EDD should not question you about your immigration status, or report your lack of status if it is somehow revealed.
Do anti-discrimination laws protect undocumented workers?
Yes. Under Federal and California anti-discrimination laws, even if you are an undocumented worker, your employer cannot fire you, refuse to hire you, harass you, or take other action against you because of your national origin (including your English language capabilities), race, color, sex, pregnancy, religion, age, or disability, or (under California law) for other reasons such as your sexual orientation, gender identity (including transgender status), marital status, military status, medical condition, pregnancy, and political beliefs. Additional protections against discrimination are found in the California Labor Code, including protections for crime victims who testify at trials, employees who take time off for jury duty, and victims of domestic violence, sexual assault and stalking. But if you were fired by your employer as part of the discrimination, it’s less clear whether you, as an undocumented worker, can recover the income you lost because you were fired, or whether you can get your job back. If you fear retaliation for bringing forward a discrimination claim, especially if your employer has threatened retaliation against you or others in the workplace, we strongly recommend talking to an immigration attorney as soon as possible to help you evaluate your risk according to your individual immigration history.
Filing a Claim: If you choose to file a discrimination claim, you should contact the U.S. Equal Employment Opportunity Commission (EEOC), or the California Civil Rights Department, depending on the nature of your claim. If your claim is successful, your employer may have to stop its illegal practices and you may be eligible for remedies, possibly including certain monetary damages.
For more information about your rights to be free from discrimination in the workplace, see our Fact Sheet Discrimination and Harassment in Employment.
Can my employer discriminate against me because I am undocumented?
Employers are required to refuse to hire, or terminate, an undocumented worker once they have authoritative evidence that they do not have valid work authorization. Federal law makes it illegal for employers to knowingly hire or continue to employ undocumented workers. Therefore, when an employee is hired, their employer is required to ask for documents that show their identity as well as their authorization to work in the U.S., and those documents must “reasonably appear to be genuine.”
Sometimes, however, employers will fire workers using the excuse that they were undocumented, when their real reason for firing them was actually something else. For instance, an employer may say that it fired someone due to her lack of documentation because it does not want to admit it fired her because she became pregnant, is Latina, or complained about being sexually harassed. In those cases, because undocumented workers are still covered by the general laws against employment discrimination, the employer is still breaking the law because its true reason for firing the worker was illegal.
Likewise, your employer cannot use your lack of immigration status as an excuse to fire you because you complained about nonpayment of wages, a workplace injury, or tried to help organize a union in your workplace. In those cases, because undocumented workers are still covered by laws that prohibit employers from retaliating against workers who assert their legal rights, the employer is still breaking the law.
What rights do I have if my employer tells me that the Social Security Administration found a problem with my Social Security number?
In recent years, employers have suspended or terminated workers because of information received from the Social Security Administration (SSA) that there is a problem with their Social Security number. Often, employers confuse SSA “no match” letters for information concerning a worker’s immigration status, even though they say nothing about that status.
An employer may be breaking the law if it uses the letter to threaten workers. If your employer tells you that SSA contacted it about a problem with your Social Security number, you can contact Legal Aid at Work or speak with other employment lawyers, or an immigration attorney, to help understand your rights before responding to your employer.
For more information on this topic, see our SSA No-Match Letter Fact Sheet.
How do I pay my income taxes if I do not have a Social Security Number?
All workers, including undocumented workers, are required to report their income to the federal Internal Revenue Service (IRS) and to the California Franchise Tax Board. You are required to do so even if you are paid in cash. Also, if you fail to pay your income taxes, you may be turned down for certain benefits that are paid for by your tax dollars (e.g., State Disability Insurance). In addition, immigrants need to show that they have paid taxes in order to be eligible for many forms of immigration relief and benefits for obtaining lawful immigration status.
If you do not have a Social Security number to report your taxes, and if you cannot get one because you are undocumented, you can use an Individual Taxpayer Identification Number (ITIN) to properly report your income. The Internal Revenue Service can issue an ITIN to any individual who earns income in the United States but is not eligible to receive a Social Security Number. As a side benefit, an ITIN can be used to open a bank account with certain financial institutions.
Workers should never give their ITINs to their employers. Instead, workers should [only?] use ITINs to file their own tax returns directly with the IRS.
Applying for an ITIN: If you want to apply for an ITIN, contact the Internal Revenue Service and request Form W-7. You can also ask the IRS for information about “Acceptance Agents,” who are authorized by IRS to help people apply for an ITIN. The IRS can normally process your application within 6-8 weeks, but it may take as long as 12 weeks or longer. The IRS should keep confidential tax returns that are filed with ITINs, which means that they should not use them to turn people over to immigration authorities. However, there have been a few cases where immigrants who filed their tax returns using ITINs were brought to the attention of immigration authorities.
If I work in California and have a change in my Social Security number, name, or my federal employment authorization document, what are the risks I face in updating this information with my employer?
Under California law, employers cannot fire, discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update personal information based on a lawful change of name, social security number, or federal employment authorization document.
If you live in California and have difficulty with your employer when you try to update your information, you should inform them of your right to update that information. Please see this sample letter you can provide your employer, which explains that updating one’s personal information is protected under state law.
Some examples of prohibited conduct by employers include:
- Firing an employee who attempts to update their Social Security number
- Demoting an employee who attempts to provide the employer with their new name
- Suspending an employee who attempts to update their Employment Authorization Document
If you feel that your employer has done any of the above, you can file a complaint with the Division of Labor Standards and Enforcement (DLSE). For more information on how to file a complaint with DLSE, visit http://www.dir.ca.gov/dlse/HowToFileDiscriminationComplaint.htm. Your complaint must be filed within six (6) months after your employer’s retaliation against you. If you fear retaliation for filing a claim, especially if your employer has threatened retaliation against you or others in the workplace, we strongly recommend talking to an immigration attorney as soon as possible to help you evaluate your risk according to your individual immigration history.
For more information on this topic, see our Fact Sheet Updating Your Social Security Number With Your Employer.
This fact sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, Legal Aid At Work cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.
Last updated: December 2024