United States: Employers Beware: Fair Wage Laws Protect Undocumented Workers In More Ways Than One

It is typical for an employer to assume – albeit incorrectly – that an employee who has undocumented immigration status is not protected by various fair wage laws such as the Fair Labor Standards Act and the New York Labor Law. After all, on its face it would not take a great leap of logic to conclude that an employee who is subject to being deported because she lacks authorization to work or reside in this country, would not be permitted to assert a claim under wage protection statutes. But a recent decision by Magistrate Judge James Francis of the Southern District of New York made it quite clear that undocumented workers are entitled to the same protections of the FLSA and the NYLL as citizens. Even better for these workers (and worse for employers), if they start an action, they need not worry about having to disclose their tax returns or documents concerning their immigration status.

In Rosas v. Alice's Tea Cup, LLC, current and former employees of a small restaurant chain in New York City filed a lawsuit claiming the restaurant had violated the FLSA and the NYLL by failing to pay them overtime and "spread of hours" pay for days when they worked more than ten hours. As part of its defense strategy, the restaurant requested the plaintiffs to produce documents to verify their immigration status, work authorization documents, income tax returns, and documents to identify their current employer. The workers successfully asked the court for protection from having to disclose this material.

Initially, the court restated a basic premise under wage and hour law: "the protections of the FLSA [and the NYLL] are available to citizens and undocumented workers alike." The rationale is that if undocumented workers were not protected, employers would have an economic incentive to hire them and underpay them. Thus, the court rejected as irrelevant the restaurant's request for plaintiffs' immigration status and work authorization documents. The court also found that even if this evidence was relevant to the employees' credibility (for example, if they lied about their immigration status, they should not be considered trustworthy), the value of that evidence is outweighed by the danger that employees would be intimidated if required to disclose, thereby undermining the objectives of the FLSA.

The restaurant also asked the employees to identify their current employers and admit they are being paid in cash in their new jobs. As justification, the restaurant took the position that they were trying to prove the employees wanted to be paid in cash because of their undocumented status and to "avoid scrutiny" by the authorities. The court was not persuaded. Instead, it held that however the employees were currently paid, it had no bearing on the hours they had worked for, or what they were paid by, the defendant-restaurant. As in many wage and hour cases under the FLSA, the number of hours and the amount of pay were two critical questions.

Last, the court refused to require the employees to turn over their federal and state tax returns. In some cases a party might be compelled to produce tax returns. Here, however, the court concluded that the returns would contain only total income and no relevant detail such as weekly wages and specific hours worked. As an additional reason to deny the request, the court again expressed its concern that the employees would be intimidated if required to produce tax returns.

The lessons of Alice's Tea Cup could not be clearer. Employers cannot avoid liability under wage and hour laws by hiring undocumented employees. Just as important, when an undocumented employee tries to recover damages under wage and hour laws, it is not an effective strategy to request documents or other information about the employee's immigration status.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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