Approximately 10% of the federal court civil docket in the Southern and Eastern Districts of New York is currently comprised of wage theft cases arising under the Fair Labor Standards Act (FLSA). Of these cases, many plaintiffs are undocumented workers seeking to vindicate their rights to minimum wage and overtime pay. These workers are protected by state and federal wage theft laws, regardless of their immigration status.

The Immigration Reform and Control Act of 1986 (IRCA) made it illegal for employers to knowingly employ undocumented workers and established an employment verification system that employers must follow to verify the identity of potential employees and confirm that they are authorized to work in the United States. If an employer hires someone that is known to be undocumented or allows an employee to continue working after learning the person is undocumented, the employer is in violation of IRCA. In reality, however, many employers do not follow IRCA and continue to employ workers that they know are undocumented.

Although undocumented workers do not have legal work authorization, once they perform work for an employer, they are legally entitled to payment for that work. Immigration status does not impact the applicability of the FLSA and the New York Labor Law (NYLL). When courts read the NYLL and IRCA together "they do not find any inconsistencies that prevent an undocumented worker from bringing a claim under the Labor Law." Pineda v. Kel-Tech Const., 15 Misc.3d 176, 185 (N.Y. Sup. Ct. 2007). The same is true of the FLSA. Federal courts have made clear that the protections of the FLSA are available to citizens and undocumented workers alike. The FLSA's mandatory language leaves no discretion for courts to alter the statute's remedial scheme based on an employee's immigration status. Colon v. Major Perry St., 987 F. Supp. 2d 451, 459 (S.D.N.Y. 2013). As has been explained by the Second Circuit,

[A]n order requiring an employer to pay his undocumented workers the minimum wages … for labor actually and already performed … does not itself condone that [immigration] violation or continue it. It merely ensures that the employer does not take advantage of the violation by availing himself of the benefit of undocumented workers' past labor without paying for it in accordance with minimum FLSA standards.

Madeira v. Affordable Hous. Found., 469 F.3d 219, 243 (2d Cir. 2006).

All workers are entitled to payment at or above the minimum wage, which, in New York state, currently varies between $11.80 and $15.00 per hour. Non-exempt workers, regardless of immigration status, are also entitled to overtime payment for hours worked over 40 per week. An employer cannot assert a defense to wage payment on the grounds of the employee's immigration status because "such claims vindicate not only the policy underlying the FLSA but also federal immigration policy." Solis v. Cindy's Total Care, No. 10-cv-7242, 2011 WL 6013844, at *3 (S.D.N.Y. Dec. 2, 2011). The FLSA not only protects against the exploitation of workers without papers, but also serves to protect the jobs of those who do have work authorization. In this regard, Magistrate Judge Ronald Ellis noted:

Failing to enforce FLSA because the employer raises the immigration status of his employee as a defense to compensation allows the employer to effectively be immunized from its duty under the statute to pay earned wages, and would thereby be able to undercut law-abiding employers who hired lawful workers, as those workers would not be disabled from vindicating their FLSA rights.

Angamarca v. Da Ciro, 303 F.R.D. 445, 447 (S.D.N.Y. 2012) (quoting Solis, 2011 WL 6013844, at *3).

Immigration Status Is Not Generally Discoverable

During the litigation of wage theft claims, courts have repeatedly barred inquiries into the plaintiff's immigration status because disclosure of this information would have a chilling effect and "effectively eliminate the FLSA as a means for protecting undocumented workers from exploitation and retaliation." Rodriguez v. Pie of Port Jefferson, 48 F. Supp. 3d 424, 428 (E.D.N.Y. 2014). Courts have repeatedly held that information about a plaintiff-workers' immigration status is undiscoverable in FLSA cases.

In conjunction with inquiries into immigration status, Defendants often seek information regarding whether a plaintiff has filed taxes. This is often requested as a workaround to determine immigration status, or to undermine the plaintiff's credibility and discourage the plaintiff from continuing with litigation. Courts, however, generally view tax returns as private and of a sensitive nature, so calls for their production in wage-and-hour cases are usually barred, as are deposition questions regarding tax filings, unless the defendant shows that: (1) the returns are relevant to the subject matter of the action; and (2) there is a "compelling need for the returns because the information contained therein is not otherwise readily obtainable." See Rosas v. Alice's Tea Cup, 127 F. Supp. 3d 4, 12 (S.D.N.Y. 2015).

Retaliation Prohibitions

Undocumented workers may assert their right to be paid in accordance with the law and employers may not retaliate against workers for asserting these rights. Workers are protected by the anti-retaliation provisions of both the FLSA and NYLL which provide broad relief for anti-retaliation claims.

Some examples of unlawful retaliation against a worker are: decreasing a worker's hours, terminating his employment, or reporting him to U.S. Immigration and Customs Enforcement (ICE) in response to a complaint that was raised. An employer's counsel may also be held liable for retaliatory activity if the counsel takes action against the worker on behalf of the employer, such as by contacting ICE about an employee while an FLSA action is pending against the employer. In Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017), the attorney for an employer who faced an overtime lawsuit set in motion an underhanded plan to derail the employee's lawsuit. The attorney's plan involved enlisting ICE to take Arias into custody at a scheduled deposition and then remove him from the United States. The attorney's claim that he was not an "employer" and therefore not liable for retaliation was rejected by the Ninth Circuit. The court explained that the wage and hour provisions of the FLSA focus on de facto employers, but the anti-retaliation provision refers to "any person" who retaliates. Because the anti-retaliation provisions of the FLSA extend to "any person acting directly or indirectly in the interest of an employer in relation to an employee," the court reasoned that Congress meant to extend the FLSA's anti-retaliation reach beyond actual employers to include third parties acting on behalf of employers.

Senate Bill 5791, signed into law by Gov. Andrew Cuomo, went into effect on Oct. 25, 2019 and gives added protections to undocumented workers under §215 (1)(a) of the NYLL. The changes to the law make it unlawful for an employer or his agent:

to threaten, penalize, or in any other manner discriminate or retaliate against any employee includes threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee's family or household member … to a federal, state or local agency.

Settlement Payments to Undocumented Workers

Undocumented workers may recover damages for unpaid wages despite not having a valid Social Security number. An Individual Tax Identification number may be provided for settlement purposes.

Courts are protective of plaintiffs' right to collect their damages in wage cases. In Saavedra v. Mrs. Bloom's Direct, No. 17-cv-2180, 2018 WL 2357264, at *3 (S.D.N.Y. May 24, 2018), Magistrate Judge Ona Wang noted that plaintiffs in wage theft cases are often employed in industries that specifically seek immigrant workers and pay minimal amounts. If the plaintiffs and employers reach a settlement to resolve a wage-and-hour litigation, the employer's subsequent refusal to pay the settlement sum on the basis of a plaintiff's immigration status is particularly egregious and "poses a real danger of undercutting the protective goals of the wage theft laws." Judge Wang pointed out:

If Defendants chose to hire Plaintiff without a USCIS I-9 form or failed to verify the underlying documentation supporting her I-9 form, they are likely estopped from using Plaintiff's purported immigration status as a shield from performing under the settlement, particularly where Defendants already availed themselves of the benefit of Plaintiff's past labor without paying for it.

Id. at *3 n.4.

Conclusion

Protection against wage theft applies equally to undocumented and documented workers. Unscrupulous employers, who believe that immigration status creates leverage for them in the employment relationship, may be surprised to learn undocumented workers are well protected against wage theft and enjoy all of the remedies and protections available under the FLSA and the NYLL.

Louis Pechman and Laura Rodriguez are attorneys at Pechman Law Group and adjunct professors at Fordham Law School where they teach a class about wage theft.