Illegal immigrants can sue for wages for work actually performed

The Fair Labor Standards Act (FLSA) protects all workers in the U.S., even if they’re working illegally. That’s the hard lesson some cafe owners had to learn when the 8th Circuit ruled July 29 in Lucas et al. v. Jerusalem Cafe that undocumented workers were allowed to sue for back pay.

Elmer Lucas and five other illegal aliens who worked for the Jerusalem Cafe between 2007 and 2010 sued the business; its owner, Farid Azzeh; and its manager, Adel Alazzeh; accusing them of violating the FLSA by paying less than minimum wage with no overtime. The situation came to a head when one of the workers called the police after being struck by the owner’s nephew. Worried that the police would find out they employed illegal aliens, the owners paid the worker $500 to drop the charge. When he refused, the owners fired both him and all the other workers who wouldn’t falsify employment applications.

A jury initially ruled in favor of the workers, whose hourly wages ranged from $3.90 to $10.39. The minimum wage in Missouri during this period ranged from $6.50 to $7.25 an hour. Azzeh tried to claim the workers were just volunteering, but that argument didn’t go over so well.

“Yeah, right,” says Mark Spognardi, a partner at Arnstein & Lehr. “That was kind of comical, [to suggest] they’re really volunteering and they’re happy.”

On appeal, the 8th Circuit affirmed the ruling in favor of the workers and the district court’s award of minimum wage and overtime.

Irrelevant Immigration

The defendants tried to combat the FLSA with the Immigration Reform Control Act (IRCA), arguing that because it’s illegal under the IRCA for an employer to hire an undocumented worker and because the employees are working illegally, their wages can’t be protected by the FLSA.

But the court rejected this argument. The FLSA defines “employee” very broadly, the court wrote, quoting former Senator Hugo Black, who called this definition “the broadest definition that has ever been included in one act.” If Congress had wanted to exclude illegal aliens from the FLSA’s protections, it could have done so explicitly, as it did with other categories of workers, such as volunteers (which the court had already established these employees were not).

“If you perform the work, you’re entitled to the wages, irrespective of whether you’re documented or undocumented,” says Michael Gregg, a shareholder at Littler Mendelson. The workers’ immigration status was irrelevant.

The defendants’ argument relied on the Supreme Court’s 2002 decision in Hoffman Plastic Compounds Inc. v. NLRB, which the court clarified did not apply in this case. In Hoffman, the illegal employees were seeking relief for being wrongfully terminated after supporting union activity. The Supreme Court found that the illegal employees could not receive the typical remedy — back pay for the time they hadn’t worked — due to being wrongfully terminated, since they weren’t legally allowed to work in the first place. But in Lucas, it was too late; the employees had already done the work, and the law entitles everyone who actually works to receive payment for it.

“The difference between the 8th Circuit case and the Hoffman Plastics case is that the 8th Circuit case is actually a wage and hour case,” Gregg says. “It deals with an employee providing service, working for the employer and earning a wage.”

The IRCA and the FLSA work in concert to protect workers, the court says. “Congress’s purposes in enacting the FLSA and the IRCA are in harmony,” the decision reads. “The IRCA unambiguously prohibits hiring unauthorized aliens, and the FLSA unambiguously requires that any unauthorized aliens—hired in violation of federal immigration law—be paid minimum and overtime wages.”

The court likened the employers’ defense in this case to Al Capone trying to claim that he didn’t have to pay taxes on illicit income.

“You’re saying that you can’t tax something that’s illegal,” Spognardi says. “You’re going to pay for an illegal work relationship. It’s still a work relationship, you still suffered and permitted those undocumented workers to work. Otherwise you would certainly benefit from your misdeeds and [the court] can’t have that.”

Limited Defenses

Two wrongs don’t make a right. Just because you hired illegal immigrants you shouldn’t have hired doesn’t mean you don’t have to pay them what they’re owed.

“The decision underscores the importance of the scope of wage and hour claims and that the defenses to them are somewhat limited,” Gregg says. “[It’s important] for employers to comply with the vast numbers of wage and hour laws that are out there both on a state and a federal basis.”

For example, California’s minimum wage is higher than the federal minimum. Employers need to make sure they’re complying not only with the baseline set by the federal government but also the laws of each state in which they operate.

Theoretically, “don’t hire illegal immigrants” should not be new advice for employers. But Spognardi notes that this case serves as a good reminder that employers need to also comply with new I-9 immigration forms. The revised version of the form came into effect in May.

“Make sure you’re prima facie complying with I-9 employment requirements and employing properly documented workers,” Spognardi advises. And if you do end up hiring illegal immigrants, the least you can do is pay them.

—Julie Beck

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