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Undocumented worker can get back wages

by on
in Employment Law,HR Management,Human Resources

No doubt, you’ve read about the U.S. Department of Homeland Security’s (DHS) efforts to enforce the nation’s immigration laws by cracking down on employers that hire and employ illegal immigrants. So you might be surprised to learn that a New York state court has ruled that even an illegal immigrant who admits he forged his I-9 documentation and was fired can sue for state wage-law violations.

Recent case: Carlos Huerta, who is not a legal resident of the United States, got a job with Strong Steel Door after he gave the HR office fake identification. When the company received a “no-match” letter indicating the Social Security number Huerta used did not belong to him, the company followed federal law and fired him.

But Huerta sued, alleging his former employer violated the New York Labor Law by not paying the prevailing wage.

Strong Steel Door argued that Huerta broke the law when he used the fake identification, and therefore should not benefit from his illegal activity. (The company said he would not have been hired in the first place without the fake ID.)

But the New York state court hearing the case disagreed. Employers have to pay legal wages to everyone who performs work, even if they are here illegally. The only restriction is that illegal employees can’t collect pay for work they didn’t actually do. (Jara, et al., v. Strong Steel Door, et al., No. 14643-05, Supreme Court of New York, Kings County, 2007)

Final note: Remember, the DHS is cracking down on employers that let illegal immigrants work with fake documentation. Consult counsel if you are in doubt about your employment-eligibility verification obligations.

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