Undocumented Workers Protected by the Fair Labor Standards Act

February 7, 2014

The Fair Labor Standards Act (FLSA) sets forth federal guidelines that affect nearly all employers concerning overtime pay and minimum wage requirements. For example, the FLSA requires that workers be paid at least minimum wage and overtime pay at a rate of one and one-half times their standard rate of pay for those non-exempt workers who put in more than 40 hours in week.

A question that frequently comes up is whether undocumented workers are entitled to these protections as well. Several courts across the country have looked at this issue, both from a federal and state law perspective.

Recently, the New York court determined that your immigration status does not affect your rights under the FLSA. This means your employer must pay you minimum wage and overtime even if you lack the proper documentation.

If you have questions about whether you have been paid all the compensation you are entitled to, it is important to speak to an experienced Atlanta wage and hour attorney right away.

The issue of the FLSA and undocumented aliens came up in Colon v. Major Perry St., Inc.. In Colon, a group of workers, including many undocumented aliens, brought a claim under the FLSA after their employer refused to pay the workers minimum wage and overtime pay. The employer argued that the workers couldn’t collect back pay because they were in the United States illegally.

The court disagreed and ruled in favor of the workers, explaining that its clear under the FLSA that all workers are covered, even undocumented workers. Federal law intended this to be the case by defining the term "employee" as "any individual employed by the employer."

The court also noted that the FLSA was written this way so that employers don’t take advantage of undocumented immigrants and violate immigration laws. The law specifically tries to deter employers from trying to gain the upper hand by hiring “illegals” by requiring employers to pay “back pay” for violations of the FLSA. Also, applying the FLSA to undocumented workers, the court found, furthers the purpose of the Immigration and Reform Control Act—by punishing employers for employing undocumented workers.

It is important to remember that all workers are covered under the FLSA's definitions of an "employee" including undocumented workers. This means in most situations your employer must pay you minimum wage and overtime compensation.

If you have questions about wage and hour law, please schedule a confidential consultation with the knowledgeable Georgia wage and hour attorneys at The Buckley Law Firm, LLC.