Undocumented Workers Entitled to Recover Unpaid Wages Under FLSA But Not Back Pay Under NLRA

Illegal aliens who want to sue their employers for unpaid wages should do so in federal court in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, or South Dakota. Not in New York, D.C., or Connecticut.

An employer failed to properly complete Form I-9s verifying its workers’ employment eligibility. The workers sued for unpaid minimum and overtime wages. The Eighth Circuit – covering the strip of states in the middle of the country – awarded the workers damages. In doing so, it rejected the employer’s argument that the workers could not recover overtime or minimum wage because they were undocumented workers.

The Eighth Circuit reasoned that requiring wage payments for undocumented workers reduces any economic incentive to hire undocumented workers. Conversely, exempting unauthorized workers from overtime and minimum wage would frustrate the purposes of the Immigration Reform and Control Act (the IRCA) because the acceptance of substandard wages and working conditions for undocumented workers could seriously depress the wage scales and working conditions of authorized foreign workers.

If the above lawsuit was filed in the Second Circuit (NY, DC, CT) there may have been a different outcome. A group of undocumented aliens there were discharged for engaging in activity protected by the National Labor Relations Act but were denied back pay and reinstatement because they were undocumented aliens. The Second Circuit said that the undocumented aliens cannot recover because they were not lawfully employed to begin with. This case was sent back to the NLRB who is now determining whether the employees should be reinstated, minus back pay. This case also relied on the IRCA in reaching its conclusion.

Many of the smaller employers that I represent do not know about Form I-9 or that each employee must complete one at the time of hire. Or worse, they know about it, but do not do it. I repeatedly tell these companies that they are playing with fire. Employers can be audited at any time and penalties for non-compliance start at $100 – $1000 per day per violation.

All it takes is for a disgruntled former employee to call the government alleging a violation of most any workplace law – or have her attorney do so on her behalf – and companies will be required to prove that they have correctly completed Form I-9s for every employee. Remember, both lawsuits above were over wages, not immigration status. Government branches are now connected with each other, share the same computer servers, and openly talk to each other about companies under investigation.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

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