Magazine article HRMagazine

Undocumented Workers May Recover Unpaid Wages

Magazine article HRMagazine

Undocumented Workers May Recover Unpaid Wages

Article excerpt

Lamonica v. Safe Hurricane Shutters Inc., 11th Cir., No. 11-15743 (March 6, 2013).

Undocumented workers who are not authorized to work in the United States are nevertheless entitled to recover unpaid wages, including overtime compensation, under the Fair Labor Standards Act (FLSA), according to the 11th U.S. Circuit Court of Appeals.

Mario Feliciano, Augustin Milan and seven of their co-workers sued their former employer, Safe Hurricane Shutters Inc., its president and chief executive officer, and two directors to recover unpaid overtime compensation. The jury found in favor of the workers, and the trial court ordered the company and the three individual defendants to pay damages equal to two times the lost overtime wages.

The defendants appealed, and the 11th Circuit affirmed the trial court's decision. On appeal, the defendants first argued that Milan was not entitled to recovery under the FLSA because he was an undocumented worker.

In analyzing whether an undocumented worker was entitled to recovery under the FLSA, the 11th Circuit reviewed Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 (2002), a U.S. Supreme Court decision. In Hoffman, the Supreme Court held that undocumented immigrants who are unlawfully terminated for participating in union activity are not entitled to backpay awards. Safe Hurricane Shutters and the individual defendants argued that, based on the Hoffman decision, Milan was not entitled to damages under the FLSA.

The 11th Circuit disagreed and held that the Hoffman case limited the remedies available to undocumented workers under the National Labor Relations Act but did not change the broader definition of an "employee," which includes undocumented workers. As a result, the appeals court found that the Hoffman decision did not control its ruling in the Safe Hurricane Shutters suit.

On appeal, the defendants also argued that Feliciano and Milan should not be entitled to recover damages under the FLSA because they engaged in wrongdoing. Specifically, they failed to accurately report to the Internal Revenue Service income they earned from the company, and, in addition to being an undocumented worker, Milan gave his employer a false Social Security number.

The appeals court rejected this argument, holding that for an employee's wrongdoing to preclude recovery, the employee must be an active, voluntary participant in the unlawful activity and the activity must be the subject of the lawsuit. …

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