Unauthorized Aliens Are Covered Under the FLSA, 8th Circuit Rules

Author: Michael Cardman, XpertHR Legal Editor

August 7, 2013

Unauthorized aliens count as employees under the Fair Labor Standards Act (FLSA) and are therefore entitled to the minimum wage and overtime just like any other employees who are authorized to work in the United States, a federal appeals court has ruled.

"[E]mployers who unlawfully hire unauthorized aliens must otherwise comply with federal employment laws," the 8th Circuit Court of Appeals held in Lucas v. Jerusalem Cafe, LLC, 2013 U.S. App. LEXIS 15320 (8th Cir. 2013). "The employers' argument to the contrary rests on a legal theory as flawed today as it was in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit income."

The plaintiffs in the Lucas case were six unauthorized aliens who worked for a restaurant called the Jerusalem Cafe, some of them for less than the minimum wage and all of them without receiving overtime wages. They sued their employer under the FLSA, and in 2011 a district court jury awarded them about $441,000 in damages and fees.

The employer appealed the district court decision to the 8th Circuit, arguing that undocumented aliens are prohibited by law from receiving wages and lacked the right to sue under the FLSA. In support of its argument, the employer relied on the Supreme Court decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, which held that unauthorized aliens may not receive back pay after being terminated for engaging in union activities protected by the National Labor Relations Act.

Distinguishing the facts in the two cases, the 8th Circuit rejected the employer's argument because, it said, the Hoffman ruling was about work that would have been performed, not work that had already been performed.

The 11th Circuit Court of Appeals reached the same conclusion in a similar case, Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1306 (11th Cir. 2013), and it is also the position of the US Department of Labor that undocumented workers are entitled to minimum wages and overtime pay for hours worked under the FLSA.