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Undocumented Workers Can Collect Back Pay for Unpaid Overtime Under the FLSA

    Client Alerts
  • March 15, 2013

In its 2002 Hoffman decision, the U.S. Supreme Court stated that undocumented workers cannot be awarded back pay based on their employers' violation of the National Labor Relations Act. Last week, the Eleventh Circuit Court of Appeals refused to apply this reasoning to claims for unpaid overtime under the Fair Labor Standards Act, affirming a judgment for the plaintiffs.

Lamonica v. Safe Hurricane Shutters, Inc. involved claims by several employees for overtime wages. The employer contended that at least one of the plaintiffs had provided a false Social Security number when hired, and should therefore be precluded from pursuing overtime claims based on this illegal act. The Eleventh Circuit disagreed, affirming the jury verdict for the plaintiffs. The court stated that pre-Hoffman precedent recognizing undocumented workers as employees under the FLSA applies. The FLSA differs from the NLRA in that judges have no discretion to craft wage remedies other than awarding back pay. As long as such workers are defined as employees under the FLSA, they are entitled to back pay regardless of the circumstances behind their employment.

The Eleventh Circuit also concluded that this view does not violate federal immigration laws, because it only applies to work already performed by the employee. The plaintiffs did not seek pay for any post-termination period of time. Moreover, the plaintiffs are not equitably barred from seeking payment of overtime because the failure to pay overtime was not related to the alleged immigration law violations.

Courts treat other federal employment laws differently than wage claims under the FLSA. For example, undocumented workers suing under federal antidiscrimination laws are typically barred from recovering monetary damages or seeking reinstatement. As with the FLSA, these employees can recover for the employer's failure to pay for work already performed.