• Undocumented Workers Who Are "Off the Clock" or "Off the Books" Are Still Subject to the FLSA
  • August 12, 2013 | Author: Susan Nell Rowe
  • Law Firm: Ford & Harrison LLP - Clayton Office
  • Executive Summary: In Lucas v. Jerusalem CafĂ©, the United States Court of Appeals for the Eighth Circuit held that undocumented workers are entitled to recover for unpaid overtime and minimum wage violations under the federal Fair Labor Standards Act (the "FLSA").


    The FLSA requires employers to pay overtime to nonexempt employees for hours worked in excess of 40 in one week and requires employers to pay such employees the federal minimum wage. In Lucas, the employer failed to properly complete Form I-9s verifying its workers' employment eligibility. The workers later sued the employer for unpaid minimum and overtime wages. A jury ruled in favor of the workers, and the employer appealed this decision to the Eighth Circuit. The court of appeals rejected the employer's argument that the workers could not recover overtime or minimum wage because they were undocumented workers.

    In doing so, the court noted that employers who unlawfully hire unauthorized workers must otherwise comply with federal employment laws. At first blush, requiring employers to pay overtime and minimum wage to undocumented workers might seem at odds with federal immigration policy because doing so benefits, rather than penalizes, a worker who has violated U.S. immigration laws. The court, however, reasoned that requiring the payment of overtime and minimum wage for undocumented workers reduces any economic incentive to hire undocumented workers. Conversely, exempting unauthorized workers from overtime and minimum wage would frustrate the purposes of the Immigration Reform and Control Act (the "IRCA") because the acceptance of substandard wages and working conditions for undocumented workers could seriously depress the wage scales and working conditions of authorized foreign workers.

    Employers' Bottom Line:

    This case is a reminder that the courts enforce laws that protect the welfare and safety of workers, even those who are undocumented. Even in cases where the courts have been unwilling to require payments directly to workers, the courts have often assessed fines and penalties against the employer. This case should also serve as a reminder that employers who attempt to evade the employment laws expose themselves to significant potential liability under both employment and immigration law.