In its 2002 Hoffman Plastics decision, the U.S. Supreme Court concluded that undocumented and illegal workers were not entitled to an award of backpay after being terminated for engaging in union activities. Last month, the Eighth Circuit Court of Appeals rejected an employer's attempt to use this precedent to deny overtime and minimum wage payments to undocumented workers.

In Lucas v. Jerusalem Cafe, LLC, the employer argued that unauthorized workers fall outside of the Fair Labor Standards Act's definition of protected employees. The Eighth Circuit disagreed, distinguishing Hoffman Plastics by noting that that decision was based on the lack of NLRB statutory authority to make the backpay award. In contrast, the FLSA's legislative history makes clear that the law is intended to protect all workers from illegal wage practices, and that failure to extend this protection to undocumented workers would encourage unscrupulous employers to exploit this loophole.

In general, unauthorized workers are entitled to be paid under U.S. wage laws for work actually performed, regardless of their immigration status. Under Hoffman Plastics and similar precedents, they are not entitled to reinstatement, or back wages for periods of time during which they did not actually work.