Undocumented Workers May Recover Unpaid Wages
Author: New York Employment Attorney Alena Shautsova
Thousands of US small and large business employ immigrants who the government calls “undocumented”. Those are men and women who earn their living and pay taxes but do not have a permit to work in the United State. They are not necessarily employed as agricultural or domestic workers. Quite often, they are highly educated professionals such as engineers or marketing directors who work as “consultants”.
Nevertheless, the reality is such that those “undocumented” comprise a significant part of the U.S. workforce, and the reality is such that many employers take advantage of their status by depriving them of Wage protections afforded to the “legal” employees by the U.S. Federal and State laws. For example, the FLSA (Federal Labor Standards Act) states that certain employer must pay employees overtime and minimum wages; and establishes quite severe penalties for employers in case the overtime and/or minimum wage are not paid. Many State laws provide the same or higher protections. At the same time, many employers, knowing that a worker is worried about his/her legal status ignore the laws. It usually happens when an employer claims that the employee is on salaried position, or when an employer simply fails to pay for each hour worked and/or overtime, spread of hours, etc.
After the U.S. Supreme Court’s decision in Hoffman Plastic Compounders, Inc. v. NLRB, 535 U.S. 137, 148-52 (2002) which held that undocumented workers that are terminated for union activity in violation of the National Labor Relations Act (NLRA) cannot recover back pay, many employers thought that they would be immune against other Federal laws forcing them to treat undocumented workers equally with those who have the work permit. (The Hoffman Court, citing Immigration Reform and Control Act of 1986 (IRCA), which penalizes the acts of undocumented workers and provides for significant penalties to companies that knowingly employ illegal immigrants, to disallow the use of the punitive provisions of the NLRA against an employer which would benefit any person who knowingly broke immigration law, reasoned that where an employee failed to disclose his undocumented status, he cannot later recover back pay after being fired for Union activities (a remedy available to those with work permit or U.S. citizens)).
The recent line of cases regarding the issue, however, proved them wrong. In the 11th Circuit case Lamonica, et al. v. Safe Hurricane Shutters, Inc., Case No. 11-15743 (March 7, 2013) the court explicitly held that not only employers are responsible for FLSA violations with regard to undocumented workers, but also that directors of corporations as well as officers can be held individually liable for those violations.
In addition, in recent case coming from California, 8th Circuit, Elmer Lucas v. Jerusalem Café, LLC, No. 12-2170 (8th Cir, July 2013) five undocumented workers worked in a café without getting paid minimum and overtime wages. The owners paid them in cash, fixed weekly rate, without regarding the hours actually worked. Subsequently, the workers sued the café and its managers. The jury found in the workers’ favor. In accordance with the jury’s verdict, the district court awarded $141,864.04 in actual damages for unpaid FLSA wages, $141,864.04 in liquidated damages based on the jury’s finding that the employers willfully failed to pay FLSA wages, $150,627.00 in legal fees, and $6,561.63 in expenses. The employers appealed, arguing that the FLSA does not protect undocumented workers. The Lucas court held that “[t]he FLSA does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized aliens in violation of federal law.
Therefore, all undocumented workers who worked and were not paid must know that they are entitled to recovery of their unpaid wages. Employers are likewise must be aware that counting on worker’s dubious immigration status, will not safe them from the harsh penalties under the Federal laws.