Follow Us on

Undocumented or Illegal Immigrant Workers are Still Protected by the FLSA



By Robert Crump

Employing undocumented workers
For varying periods between June 2007 and March 2010, six undocumented immigrants worked at a restaurant in Missouri. Some of the employees worked for less than minimum wage and none received overtime wages. The owner of the restaurant, who also acted as a manager, paid the workers in cash at fixed weekly rates.

In January 2010, a heated dispute arose between the owner and one of the workers where the owner allegedly struck the worker, prompting the worker to call the police. Fearing the police would discover the illegal aliens, the owner offered the worker $500 to drop the charges and return to work. When the worker refused the money, the owner fired him. The owner also terminated the other undocumented employees two months later when they allegedly refused to falsify an employment application making it appear they had not been working for the restaurant before March 2010. Subsequently, the terminated workers sued the restaurant and the owner for willfully violating the FLSA.

Broad definition of “employee”
At trial, a jury ruled in favor of the workers. The court of appeals rejected the employer's argument the workers could not recover overtime or minimum wage because they were undocumented workers. As the court put it, “[a]liens, authorized to work or not, may recover unpaid and underpaid wages under the [federal Fair Labor Standards Act].”

The employer’s defenses in the case involved two basic issues: whether unauthorized workers could be “employees” or “employed,” as defined by the FLSA, and whether such workers had legal standing to bring a claim under the FLSA. The court summarily dismissed both issues. The appellate court quoted a comment from a congressional debate stating the FLSA’s “definition of employee [is] the broadest definition that has ever been included in any one act.” It noted nowhere in the definition is there any indication for the exclusion of undocumented workers. Second, the court ruled, although the workers may not have standing to bring suit involving their continued employment, they were still free to pursue claims for back owed wages.

In reaching its decision, the Eighth Circuit noted employers who unlawfully hire unauthorized workers must otherwise comply with federal employment laws.  The court reasoned requiring the payment of overtime and minimum wage for undocumented workers reduces any economic incentive to hire undocumented workers.  Conversely, exempting unauthorized workers from overtime and minimum wage would run counter to the purposes of the Immigration Reform and Control Act (the "IRCA") because the acceptance of substandard wages and working conditions for undocumented workers could damage wage scales and working conditions of authorized foreign workers.

This case serves as a reminder for employers that the courts enforce laws protecting the welfare and safety of workers, even if those workers are undocumented.  Further, even in cases where the courts have been unwilling to require payments directly to workers, the courts have often assessed fines and penalties against the employer.  Finally, this case should serve as a reminder employers who attempt to evade the employment laws expose themselves to significant potential liability under both employment and immigration law.


Add comment

Security code