Employers can’t use an employee’s undocumented status as an excuse for not paying minimum wage or overtime under the Fair Labor Standards Act ().
Recent case: Several former El Chile restaurant workers filed FLSA suits, claiming they weren’t paid minimum wage or overtime. None asked to be reinstated.
During the initial phase of the lawsuit, El Chile’s lawyers wanted to ask about the workers’ immigration status. They argued that illegal immigrants aren’t protected by the FLSA.
But the court disagreed. It denied the lawyers’ request, saying that even illegals are covered by the FLSA because the law defined employee as “any individual employed by an employer.” (Villareal v. El Chile, No. 07-C-1656, ND IL, 2010)
Note: The court, of course, can’t order El Chile to rehire anyone who doesn’t have legitimate work authorization. But employees are still entitled to be paid for the work they performed.