Dear Atty. Lou,
I hope you can help me in my situation. I am a Filipino male caregiver who overstayed my visa.
Last Monday evening, a fellow Filipina caregiver to an owner of carehome and agency referred me because he was in need of a caregiver immediately. I called the owner of the agency and he instructed me to start working on a Tuesday at 7:00 am. He told me he is need of a caregiver to take care of a male patient in the Bay Area for 5 days on a regular basis. So I went to the residence of the patient started working right away.
I worked for 6 days after which the regular caregiver reported for duty and was subsequently retained instead of me. So knowing this, I called the owner of the agency who asked me to work and asked how I can get my salary. Most of the time it’s only an answering machine and I just left messages. Finally, he called back and he told me to call one of his staff in his office to inform his office of the number of days I worked.
Today, I called again several times his office to remind him about my salary but I have not received any response and I kept leaving messages. Finally, in the late afternoon, he called back, I was surprised, he yelled at me, cursed me, called me “bakla” and threatened to have me deported! What should I do Atty. Lou? What agency should I go to? Please help me. I am now confused and afraid. Do I have employee’s rights?
Harassed Caregiver
Dear Harassed Caregiver,
As an overstaying nonimmigrant visitor, you have no legal authority to work in the United States. Hence, when the owner of the carehome and agency hired you to work as a caregiver, he was obligated by law to determine whether you are lawfully authorized to work in the United States. Since, he did not perform his duty as mandated by law, your employer is also liable for hiring undocumented alien.
You do not possess the proper visa to work in the US and the Department of Homeland Security through the Immigration and Customs Enforcement may take you into custody and put you in removal proceedings if your employer sends information to this agency about your status. But this is only if they verify your unlawful status. You may raise any available relief in Immigration Court to avoid your removal/deportation. You need an attorney to represent you in this proceeding.
As far as your wages is concerned, despite the fact that you are undocumented, if you rendered work, you have the right to recover your wages. This is under the Fair Labor Standards Act, which regulates how much workers must be paid, and it includes provisions on minimum wage and hours worked. If your employer refuses to pay you your wages, you may file a claim with the Wage and Hour Division of the US Department of Labor for violation of the FLSA.
In regards to the verbal abuse during the telephone conversation, since it occurred outside of employment ie after your work has been terminated, it could not be categorized as harassment at work but may be a civil case for defamation or intentional or negligent infliction of emotional distress or assault.
Assuming the harassment was perpetrated at the workplace, this may be a clear case of discrimination based on sexual orientation. Sexual orientation discrimination includes being treated differently or harassed because of your real or perceived sexual orientation—whether gay, lesbian, bisexual; or straight. There will be potential damages and liabilities for discrimination based on sexual orientation in some State law but not in Federal law except for federal government workers.
Again, it is unfortunate that while you may have employees’ rights that you may assert against your employer, the Department of Homeland Security may still enforce immigration law against you. So be cautious of your plans.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
