This is a guest post from Ty Frankel, Esq., an associate at Bonnett, Fairbourn, Friedman, & Balint, P.C. and a valued member of the Florence Project’s Board of Directors.
The Fair Labor Standards Act (“FLSA”) is the federal law governing overtime and minimum wage for workers across the United States. If workers have not been paid the requisite minimum wage for all hours worked or have been denied the time and a half overtime rate for hours worked over forty in a workweek, they have the option to file a claim with the Department of Labor or an individual lawsuit in federal court. Workers can also file collective actions in which they seek to enforce the rights of all the employees who work for their company and who, like them, were improperly denied the proper wage.
Almost every workplace in the United States must comply with the FLSA. Eligible workers must be paid at least the minimum wage, which in Arizona is $8.05. Eligible workers must also be paid time and a half for every hour worked over forty in a workweek. Most workers are entitled to protection under the FLSA. Common wage violations include assuming employees paid salary or piece rate are not due overtime; misclassifying employees as independent contractors; failing to pay for all hours worked; and making improper deductions, including certain arrangements for tipped employees. Workers who are usually entitled to overtime include service industry workers, clerical workers, cleaning crews, and many others.
Immigrants, particularly undocumented workers, are more likely to experience violations of the FLSA than other workers. According to a National Employment Law Project report published in early 2013, 76% of undocumented workers worked off the clock without pay; 85% of undocumented workers received less than the legally required overtime rate; and 37% of undocumented workers received less than the minimum wage.
While these numbers reflect a disturbing trend, it is critically important to recognize that immigrants, including those without documents, can enforce their right to be paid properly for all the work they performed. Some federal cases and the Department of Labor recognize that the minimum wage and overtime provisions of the FLSA cover all employees without regard to their immigration status. Workers, including immigrants, who prevail in a federal action under the FLSA may be entitled to back wages, liquidated damages, and interest. Even low wage workers can afford to enforce their rights – a prevailing employee’s attorneys’ fees and costs must be paid for by the employer who failed to pay the proper wages.
With that said, immigrants should consider their options carefully before bringing an action for unpaid wages, particularly if they are undocumented. While it is unlawful for an employer to retaliate against them for bringing an action under the FLSA, there are practical concerns to weigh regarding an employer’s potential tactics. It is nevertheless encouraging that a growing body of case law holds that a court may prohibit discovery of an employee’s immigration status where such discovery is either not relevant at all to the essential elements of the claim or where the relevance is so slight that it is outweighed by the prejudice.
Immigrants should remember their rights in the workplace, and after weighing all their options, consider whether to pursue legal action under the FLSA, which affords them the same rights as anyone who has been denied the hard-earned wages they worked for.
Disclaimer: This article is intended as general information only and does not carry the force of legal opinion.