Undocumented Workers Are FLSA Eligible

By Bryan Stillwagon

In 2002, the Supreme Court ruled that the NLRB cannot award backpay to undocumented workers even if their employer discharged them for union activity. Awarding backpay to undocumented aliens, the Court said, would encourage future immigration violations. The same ruling does not extend to Fair Labor Standards Act (“FLSA”) violations, according to the Eleventh Circuit Court of Appeals. Lamonica et al. v. Safe Hurricane Shutters, Inc., No. 11-15743 (11th Cir. Mar. 6, 2013). In this recent case, the Eleventh Circuit approved an award of unpaid wages and liquidated damages under the FLSA to a group of former employees, including one worker who had applied for work using a false Social Security number and was not authorized to work in the United States. According to the Circuit Court, the FLSA violation was different from the NLRA violation because, in the NLRA case, the terminated employee is seeking the right to work, but in the FLSA case the plaintiff was seeking wages and premium pay for work already performed. Thus, the court concluded that the ex employee’s ability to recover unpaid wages under the FLSA did not depend on his immigration status.

This case is another reminder of the FLSA’s expansive coverage. Undocumented workers—fake Social Security numbers or not—are FLSA-protected “employees,” too.

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