What is a “day laborer”?
“Day laborers” are people employed on a temporary, day-to-day basis, normally working in construction, light manufacturing, landscaping, and other similar jobs. Day laborers find work either through a temporary day labor agency (or labor hall) or by waiting on a designated street for an employer to arrive and hire workers as needed. Workers often do not know from day to day whether they will get work.
Day laborers typically encounter a number of problems in getting paid fairly for their work. Day laborers are regularly denied payment for their work, many are subjected to serious hazards at their job sites, and most endure insults and abuses by employers. They are often hired by individuals who are trying to minimize their costs and have maximum flexibility. Day laborers may deal with two separate “employers,” the agent who hires and pays the workers, and the person at the work site directing the work. Day laborers are not represented by unions and lack protections guaranteed to unionized workers in the same occupations. Many day laborers are undocumented and lack work authorization, making them vulnerable to exploitation.
Are day laborers covered by employment laws?
Yes, although day laborers often face difficulty asserting their legal rights due to economic or immigration status, the nature of the work does not impact your coverage under U.S law. You are covered by employment laws the same way as other employees.
I came to this country illegally, and am not authorized to work here. Can an employer refuse to pay me, even after initially hiring me, due to my immigration status?
No. Although it is illegal for employers to knowingly hire you if you are not authorized to work in the United States, you still have many of the same workplace rights as a documented worker, including:
- The right to organize: It is illegal for an employer to punish or threaten you for organizing to improve your work conditions.
- The right to be paid: You have the right to be paid minimum wage and overtime. If you do not receive all of your pay for the time you actually worked, you can recover that pay.
- The right to be free from discrimination: It is illegal for an employer to discriminate against or harass you based on such characteristics as race, color, religion, age, disability, national origin, or sex.
- The right to be safe on the job: You are protected by workplace health and safety protections.
- The right to remain silent: After you have been hired, you have the right to remain silent when your employer or anyone else asks about your immigration status.
At most, you may be denied back wages or reinstatement as a remedy for the period for which you were not working due to being illegally fired (but not for time which you actually worked), based upon a U.S. Supreme Court decision concerning an undocumented worker who was fired for helping to organize a union.
It is against the law, in most cases, for your employer to report or threaten to report you to Immigration and Customs Enforcement (ICE) (formerly known as the Immigration and Nationality Service (INS)) because you opposed unlawful employment practices. If your employer appears to have acquired information about your unauthorized status after you complained of an unlawful employment practice, the government agency investigating your complaint will also attempt to determine whether your employer’s purpose in finding out information about your immigration status was to retaliate against you.
Any person facing deportation, whether as a result of incidents occurring at work or not, should consult immediately with a lawyer who specializes in immigration law, as this is a serious and complex legal issue beyond the scope of the information provided by this website.
After getting an assignment at the agency, I had to wait thirty minutes before I was taken to where I would be working. Should I be paid for that time?
It depends. Day laborers often have problems getting paid for all the time they are required to wait before and after performing a job. The standard used to determine whether or not a day laborer is entitled to be paid for time spent waiting revolves around whether a day laborer was “required to be at the employer’s disposal,” (at either the day labor agency or the work site) during the time in question. If you are not free to leave the premises and use the time for your own purposes, then you should be paid. Generally, this means that you should at least be paid wages from the time that a job is assigned.
Prior to an assignment, you are usually free to stay or go as you wish and so courts are unlikely to consider you to be employed before a job is assigned. This makes it more difficult to get paid for the period between arriving at the labor hall, or job pick-up site, and the time the job is assigned. If you are required to report (at the day labor agency or worksite) at a specified time and wait each day for the same job over a number of days, it is easier for you to get paid for that waiting time, even if you have to wait until a later time for the actual work to begin.
Your employer does not have to pay you for the time you spend before or after work on activities at the worksite that is solely for your own convenience and are not integral to your job. The issue is whether the waiting was primarily for your own benefit or for the employer’s benefit.
At one of the jobs where I worked, the employer transported me to the work site each day, and provided me with lunch while I was there. When I got paid, there were deductions for transportation and meals, and I wasn’t even paid minimum wage for the time that I worked. Is the employer legally allowed to deduct that money from my pay?
Under federal law, an employer may make certain types of legally authorized deductions from your pay, however, generally the deduction cannot bring your pay below the minimum wage, and laws in your state may offer you even greater protection.
Permitted Deductions: Federal law does allow employers to make deductions that do not cut into the federal minimum wage provided the following circumstances are met:
- The employee actually and voluntarily received the benefit
- The benefit was not furnished primarily for the benefit or convenience of the employer
- The benefit was not furnished in violation of any state or federal law
- The deduction is provided at a reasonable cost
- The payment of noncash wages is not prohibited by a union agreement
- The benefit is customarily provided to employees. That is, the item must be provided regularly or similar items must be provided by other employers in similar businesses in comparable geographic locations
Examples of permitted deductions might include meals or check cashing, assuming the benefit was received on a voluntary basis.
Prohibited Deductions: Benefits that actually work to the convenience of the employer may not be credited against a day laborer’s wage. For example, if you offer to arrive at the facility by making your own transportation arrangements, but the employer does not allow this in order to make sure that everyone shows up on time, then the transportation is for the employer’s benefit and cannot be credited against the minimum wage. Or if the employer provides transportation so that work-related business or training can start during the trip, you may also be entitled to be paid for travel time. Some employees may value the convenience of being able to eat the employer’s food for cost, and may choose to have that cost deducted from their paychecks, but it must be voluntary. Here are some other examples of deductions that may not bring employee wages below the federal minimum wage:
- Fees for transport (If transportation is part of and necessary to employment,) transportation deductions cannot bring an employee wage below the federal minimum wage. Also, federal courts have held that travel time by day haul workers to and from a recruitment site to fields is generally not compensable in the absence of some work related activity at the recruitment site or during the trip.
- Essential Tools and Safety Equipment: These items should generally not be deducted from wages as they are regarded as necessary and convenient in order for the employer to lawfully ask his employees to perform he work requested of them. If safety equipment is required under state law, then they are to be regarded as uniforms, which are also not to be deducted from employee pay.
- Uniform: uniforms are not to be deducted from a worker’s wages if they are required by law, the employer, or by the nature of the work performed.
Can the employer deduct the cost of my uniform or required safety equipment from my pay?
As previously explained, generally no. Items which would be considered to be for the benefit or convenience of the employer, and cannot be deducted if it would cause your salary to be reduced below the minimum wage, are:
- Uniforms required by the employer that can only be worn on the job (including required safety equipment such as hard hats, boots, and gloves;
- Tools used in your work;
- Compensation for damages to the employer’s property by the employee or any other individuals;
- Compensation for financial losses due to clients/customers not paying bills; and,
- Compensation for theft of the employer’s property by the employee or other individuals.
Employees may not be required to pay for any of the cost of such items if, by so doing, their wages would be reduced below the required minimum wage or overtime compensation. This is true even if an economic loss suffered by the employer is due to your own negligent actions. For more information, see our site’s page on deductions from pay.
The day labor agency offers to cash our paychecks but charges a fee for that. Can that fee be deducted from my pay?
If the service is voluntary, it could be considered primarily for the benefit of employees, which means that it is legal to deduct a fee from your wages, unless the fee would cause your pay to end up below the minimum wage. If the service is mandatory, it may not be deducted from your wages. For more information, see our site’s page on deductions from pay.
If I get injured while I’m working, does the employer have to pay for my medical expenses?
If a worker is hurt on the job, the employer is responsible for all of that person’s medical treatment, lost wages, vocational rehabilitation, and in the worst-case scenario, survivor benefits. However, many employers who use day laborers do not pay into the workers’ compensation system. If you are hired through an agency, the agency may be responsible for paying workers’ compensation on behalf of its laborers. Some homeowners’ insurance policies provide coverage when a homeowner hires a laborer for a job who is then injured while working on the premises.
If you have been injured while working as a day laborer, and the employer refuses to take responsibility, you should talk with an attorney, community group, or legal services organization to find out what your rights are in this situation.
I think I might have a legal claim against my employer for not paying me properly, but I don’t know how to contact them.
Often you may not have enough information about your employer to allow you to pursue any legal claims you might have. You should always take writing materials with you when you go to work so that you can write down the name and address of the employer, the address of the work site, and as much additional information about the employer as possible. You also should keep a record of the date, time, and the number of hours worked.
If you don’t have that information, it may be difficult for you to pursue a legal claim against your employer, but you should talk with an attorney, community group, or legal services organization to make sure. There may be other workers who have faced similar problems with the same employer or agency, so the attorney or legal services organization may already have some of the information you would need to proceed with a legal claim against an employer or agency who consistently fails to pay its workers. In most areas, it will be necessary to file a claim for your wages with a government agency or file a claim in small claims court, but in a few cities, it is a crime not to pay workers the wages they have earned.
Where can I find more information?