In light of Arizona’s new illegal-alien law and the nation-wide controversy surrounding it, it is important to be aware of the legal rights and remedies that are available to undocumented workers under the Fair Labor Standards Act (“FLSA”) and other labor laws. Undocumented workers are more likely to be exploited because they live under the risk of deportation. The courts, however, have been very protective of the rights of undocumented workers to obtain the minimum wage and overtime they have earned regardless of the fact that they are in the United States illegally.
Undocumented Immigrants Have the Right to Be Paid Minimum Wage and Overtime
The FLSA requires that employers pay their employees a minimum wage ($7.25 per hour) and overtime pay for all the hours that they work. Undocumented workers are considered “employees” within the meaning of the FLSA and have the same rights under the law as workers who are in the country legally. A worker’s immigration status does not affect his right to be paid for the work he performs. Moreover, undocumented workers are not required to disclose their immigration status in order to assert their rights under the federal labor laws.
It is Illegal for an Employer to Retaliate Against an Undocumented Worker
In addition, it is important to recognize that it is illegal for any employer to retaliate against an undocumented worker who brings a claim under labor and/or discrimination laws. In a recent New York federal court case, Centeno-Bernuy v. Perry, the employer tried to report his employees to the Immigration and Naturalization Service as members of a terrorist cell in retaliation for their filing of a FLSA lawsuit against him, assuming they would be deported and the case would be dropped. Instead, the employer’s actions were found to be unlawful retaliation and the court prohibited him from contacting any government official or agency regarding the plaintiffs. Notably, retaliation victims under the wage and hour laws may be entitled to punitive damages.
There are a total of about 12.7 million workers in the restaurant industry in the United States. According to 2008 estimates from the Pew Hispanic Center, over 500,000 restaurant chefs/cooks and 360,000 dishwashers are undocumented workers. Many of these workers are not paid the wages they are entitled to because unscrupulous employers think they will not sue. Think again.