Employees can always sue if they haven’t been paid for their work—even if they’re in the country illegally and not eligible to work in the United States. Employers can’t use their undocumented status as an excuse for not paying minimum wage and overtime under the Fair Labor Standards Act (
Plus, attorneys can’t even ask undocumented workers about their immigration status because that might intimidate them into dropping their claims for fear of an immigration raid and deportation.
Recent case: Virginia Villareal and other former employees of El Chile restaurants sued for minimum wages and overtime they claimed the chain never paid them when they worked there. None asked to be reinstated, nor did they request lost wages past their actual dates of employment.
During the initial phases of the lawsuit, lawyers for El Chile wanted to ask the former employees about their immigration status. They argued that if any of the employees were illegal immigrants, they were not protected by the FLSA.
The court disagreed. It ruled that even illegal immigrants are covered by the FLSA, because the law defined employee as “any individual employed by an employer.” The court concluded that if they worked for the company, they were entitled to minimum wage and overtime protection.
The court went on to deny the lawyers their request to question the former employees about immigration status. (Villareal v. El Chile, No. 07-C-1656, ND IL, 2010)
Final note: Of course, the court won’t be able to order El Chile to rehire anyone who doesn’t have legitimate work authorization. That would be tantamount to ordering the restaurant to break the law. But employees are still entitled to be paid for the work they performed, whether citizens, green-card holders or illegal immigrants.
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