Undocumented workers can sue for retaliation under FLSA — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Undocumented workers can sue for retaliation under FLSA

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in Employment Law,Human Resources

Macan Singh was recruited to work in the United States with a promise of a place to live, free tuition and eventual partnership in a business. When none of this materialized and he had worked without pay for three years, Singh filed a claim with the California labor commissioner.

Singh's employer threatened to report him to the INS unless he dropped the claim. The parties settled, but the next day, the INS arrested Singh and detained him. He sued the company, claiming retaliation and demanded back pay owed under the Fair Labor Standards Act (FLSA).

The company argued that undocumented workers shouldn't be able to win back pay under the FLSA. It cited a key 2002 Supreme Court decision that said back pay may not be awarded to illegal aliens who are fired in violation of the National Labor Relations Act. (Hoffman Plastic Compounds v. NLRB)

But a district court said allowing undocumented workers to bring retaliation claims under the FLSA doesn't conflict with immigration policies. In fact, it gives companies less incentive to hire illegal workers knowingly. (Singh v. Jutla & C.D. & R Oil Inc., 214 F. Supp. 2d 1056, N.D. Cal, 2002)

Advice: Don't expect to hire an illegal alien knowingly and then point to his undocumented status as justification for violating his job rights. As this case shows, courts apply FLSA protections equally to all employees, regardless of immigration status.

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