The Fair Labor Standards Act (FLSA) sets forth federal guidelines that
affect nearly all employers concerning overtime pay and minimum wage requirements.
For example, the FLSA requires that workers be paid at least minimum wage
and overtime pay at a rate of one and one-half times their standard rate
of pay for those non-exempt workers who put in more than 40 hours in week.
A question that frequently comes up is whether undocumented workers are
entitled to these protections as well. Several courts across the country
have looked at this issue, both from a federal and state law perspective.
Recently, the New York court determined that your immigration status does
not affect your rights under the FLSA. This means your employer must pay
you minimum wage and overtime even if you lack the proper documentation.
If you have questions about whether you have been paid all the compensation
you are entitled to, it is important to speak to an experienced
Atlanta wage and hour attorney right away.
The issue of the FLSA and undocumented aliens came up inColon v. Major Perry St., Inc.. In
Colon, a group of workers, including many undocumented aliens, brought a claim
under the FLSA after their employer refused to pay the workers minimum
wage and overtime pay. The employer argued that the workers couldn’t
collect back pay because they were in the United States illegally.
The court disagreed and ruled in favor of the workers, explaining that
its clear under the FLSA that all workers are covered, even undocumented
workers. Federal law intended this to be the case by defining the term
“employee” as “any individual employed by the employer.”
The court also noted that the FLSA was written this way so that employers
don’t take advantage of undocumented immigrants and violate immigration
laws. The law specifically tries to deter employers from trying to gain
the upper hand by hiring “illegals” by requiring employers
to pay “back pay” for violations of the FLSA. Also, applying
the FLSA to undocumented workers, the court found, furthers the purpose
of the Immigration and Reform Control Act-by punishing employers for employing
It is important to remember that all workers are covered under the FLSA’s
definitions of an “employee” including undocumented workers.
This means in most situations your employer must pay you minimum wage
and overtime compensation.
If you have questions about wage and hour law, please schedule a confidential
consultation with the knowledgeable
Georgia wage and hour attorneys at The Buckley Law Firm, LLC.