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Don’t expect to get away with paying undocumented workers less than law requires

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in Compensation and Benefits,Human Resources

In a case that shows courts are losing patience with employers that hire undocumented ­workers and then flout wage-and-hour laws, a federal court has zapped an em­­ployer almost $285,000 in unpaid wages and penalties, and another $150,000 to pay the former em­­ployees’ legal fees.

Employers shouldn’t expect to get away with ignoring immigration laws and then taking advantage of undocumented workers’ willingness to work for less than minimum wage and no overtime payment.

In the long run, doing so can wind up costing far more than you hoped to save by stiffing workers.

Recent case: Feliciano and other workers at the Jerusalem Café worked long hours—sometimes as many as 80 hours per week—as servers and in other restaurant roles. None had legal authorization to work in the United States and all were paid a set weekly salary in cash, no matter how many hours they worked in a given week. No overtime was ever calculated, either.

When a relative of the owner struck Feliciano, he called police and reported the assault. The owners offered Feliciano $500 to drop the charges and get back to work immediately. He refused and was fired.

The other undocumented workers also lost their jobs after they refused to alter their work records to show they hadn’t actually ever worked for the restaurant. They found an attorney to take their case to court.

The restaurant owners argued that none of the men had worked for the company, but had instead “volunteered” their services. When shown pictures of the men working, the owners said the workers were merely posing for the photos. Not surprisingly, the judge didn’t buy that—or that they were volunteers helping out.

The court also wasn’t sympathetic to the owners’ argument that the men weren’t entitled to protection under the Fair Labor Standards Act (FLSA) because they were in the country illegally. Violating one law by hiring them didn’t excuse violating a second law by paying them sub-minimum wage.

The court calculated the underpayments, doubled that figure as a penalty and added another $150,000 in attorneys’ fees—for a total tab of about $440,000. (Lucas, et al., v. Jerusalem Café, et al., No. 12-2170, 8th Cir., 2013)

Final notes: In part because of the ongoing controversy about immigration reform, employers find themselves in the cross hairs of state and federal labor investigators and attorneys looking to represent undocumented workers who are willing to work for less than the law requires. Everyone is demanding that em­­ployers play their part in halting illegal immigration.

In addition, there’s another danger to violating immigration and wage-and-hour laws. Hiring undocumented workers can lead to criminal charges for those responsible. You can’t simply ignore the law, refuse to properly demand I-9 documentation and not follow up if documents turn out to be suspect.

Plus, under the FLSA there is individual liability to those man­­agers and other professionals who are responsible for paying proper wages and overtime but who don’t.

It’s a compelling reason to keep up-to-date on these important areas of HR law.

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