The New York construction industry is ripe for wage theft and the exploitation of undocumented or under-documented workers. This is a rampant problem that has affected workers who are in a vulnerable position. It is not only immoral, but also reprehensible to take advantage of these construction workers, who are typically immigrants. The current economic crisis and public health crisis has especially exacerbated the problem.
Wage theft lawsuits under the Fair Labor Standards Act presently make up 10% of the federal court civil docket in the Southern and Eastern Districts of New York (FLSA). Many of the plaintiffs in these instances are undocumented workers attempting to defend their entitlement to minimum wage and overtime. Regardless of their immigration status, these employees are protected against pay theft by state and federal legislation.
Illegally hiring undocumented immigrants was made unlawful by the Immigration Reform and Control Act of 1986 (IRCA), which created an employment verification system for companies to use in verifying the identities of prospective employees and determining whether they are permitted to work in the United States. Still, many construction companies will ignore these regulations, hire these workers and pay them drastically lower wages to maximize profits and save money.
Unscrupulous contractors continue to exploit new immigrants and day laborers in New York's construction sector, even as these workers are becoming a top priority for political leaders throughout the state.
What is Wage Theft?
Overtime pay, minimum wage, and other employees' rights are outlined in the Fair Labor Standards Act (FLSA). However, something called "wage theft" happens frequently on New York construction sites. Not paying workers the minimum wage, making unlawful deductions to their pay, and a refusal to pay overtime are all examples of wage theft, as is "off-the-clock" labor (something we talk about later).
Workers (in all industries) must be paid an hourly minimum wage, which is different from state to state. In New York City, the wage is $15/hour and is set to potentially increase to $17 in 2023, while Upstate New York has an hourly minimum wage of $13.20 with a $1 increase proposed for next year. Workers are also required to get overtime compensation for any hours worked in excess of 40 in a week.
Wage theft occurs when a company fails to pay workers the appropriate minimum wage or overtime. However, only three years of unpaid wages may be recovered in a legal case, but employers may also be ordered to pay twice the amount of outstanding wages and legal expenses. In order to collect any unpaid wages, you should speak with an employment law attorney as soon as you suspect you've been a victim of wage theft.
The Fair Labor Standards Act (FLSA)
What is the Fair Labor Standards Act (also referred to as the FLSA)? This act – which applies to the majority of workers, but particularly those who are paid on an hourly basis – sets the minimum wage, overtime rates, and other benefits for employees. Under these rules, workers must be compensated for all hours worked.
There's also a term referred to as "off-the-clock" labor, which is similar to overtime in that an employee is not paid a normal hourly wage. More often than you think, employers will take advantage of their workers who volunteer to work additional hours "off-the-clock" because they believe they will be reimbursed adequately for their extra labor. Staying after their shift to complete a job or commuting between work locations would fall into this category. To save money, many companies ignore laws requiring them to pay workers for time spent working outside of normal business hours. However, workers are entitled to be paid under federal law.
The exception is roles such as executive, administrative, and other professional personnel that are commission-based. They are generally exempt from these regulations.
Undocumented Construction Workers in New York: What Are Their Rights?
Undocumented employees in New York receive the same legal protections as any other workers. Even though they are in the country illegally, they are still entitled to some fundamental rights, such as the right to file a workers' compensation claim. They may be eligible for compensation for lost pay and medical expenses if they follow the proper legal steps after suffering an injury during a construction site accident.
Businesses continue to mislead their employees about their legal rights despite the laws. Some employers will deny an undocumented employee workers' compensation if they have been injured on the job; or even threaten to report them for being an illegal immigrant if they hire a construction accident lawyer or file a claim. These tactics are unlawful and should not be permitted. Unfortunately, the threat of deportation keeps many immigrants from taking a stand, and instead, enduring harsh and immoral treatment.
There is legal recourse they can take, and the first step that should be taken is to consult with a knowledgeable attorney about the specific situation.
Been A Victim Wage Theft?
If much of what we talked about in this article applies to you, you may be able to submit a claim, collect back pay or sue for an injury sustained in a construction accident.
Our stellar employment law team at Brandon J. Broderick, Attorney at Law has been helping clients protect their rights for years. Contact us now to schedule a free consultation. We pride ourselves in providing the best legal help and complete client satisfaction.