Can Undocumented Workers File a Claim for Unpaid Overtime?

Living up to the country’s moniker as the land of equal opportunity, the United States federal government has taken huge strides in protecting right of each worker to receive fair and equal compensation. As such, every individual employed in America is expected to be compensated with no less than a minimum wage of $7.25 for every hour of work. Similarly, many of these employees are also required by law to receive additional wages for time spent rendering services over the regular 40-hour work week. Both these rules found in the Fair Labor Standards Act , abbreviated as FLSA, are meant to cover a huge majority of the American workforce, including undocumented workers who may not have proper immigration status.

The FLSA puts it quite clearly: barring very few circumstances, all workers employed in the United States are entitled to overtime wages. In no way does the FLSA single out undocumented workers in its entire treatise. Regardless of one’s immigration status, all employees in America are expected to receive the same legal protection when it comes to the payment of wages. Just like every other American employee, these workers have every right to consult with an overtime pay attorney and pursue a claim for unpaid wages with the Department of Labor or their state court. In these proceedings, an undocumented worker’s claim must be evaluated in the same way as any other claim would be. Employers arguing the claim are, therefore, prohibited from bringing up issues of immigration and citizenship in order to influence the outcome of the petition.

Through changing social and cultural conversations, much of the U.S. has made significant progress in protecting the rights of undocumented workers. These developments were widely influenced by a few notable FLSA violation cases from the last few years. One of these cases was ruled on by the U.S. District Court for the Southern District of New York in 2011. The case Solis v. Cindy’s Total Care, Inc., filed by the Department of Labor, involved a luxury nail salon which argued that the undocumented workers in their employ were exempt from FLSA coverage. District Judge Paul Engelmayer ruled otherwise, emphasizing that the FLSA notably covers “any individual” in its policies, without ever explicitly ruling out foreign residents or undocumented workers.

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