Generally, employers can’t use a former worker’s undocumented status as a defense to improper wage payments. Simply put, immigration status isn’t relevant to whether an employer violated theby paying less than minimum wage or failed to pay proper overtime.
However, if the worker is cooperating with the Department of Labor (DOL) in an FLSA case, the employer may demand to know whether the worker may receive something of value for his testimony. Many times, that something is a visa allowing the undocumented immigrant to stay.
Recent case: The DOL sued the Seafood Peddler restaurant in San Rafael on behalf of a group of workers who claimed the company short-changed them on overtime and other FLSA issues.
The restaurant asked the court to allow it to question the workers about their immigration status. The court refused, ruling that the question wasn’t relevant to whether the workers had been paid too little.
The restaurant also asked the DOL to reveal how many, if any, of the workers involved in the lawsuit had been offered so-called U Visas. These are special stay-and-work visas for undocumented immigrants who are victims of crime and who cooperate with the government.
The judge said that the government had to provide that information to the Seafood Peddler, because if a worker were to testify, his credibility could turn on his motivation to receive a U Visa, allowing an otherwise illegal stay to become legal.
The judge will now have to work out a way for the restaurant to challenge credibility without revealing that the workers entered the country illegally in the first place. (Perez v. Seafood Peddler, No. 12-CV-00116, ND CA, 2104)
Final note: Be sure to ask your attorneys whether your defense should include asking about the U Visa program.