Does FLSA protection apply to undocumented aliens without work authorization?


Call (954) 946-8130 for a free telephone consultation with a Florida lawyer with immigration law experience about your unpaid overtime and minimum wage claim.

Are aliens without employment authorization entitled to FLSA protection?

Yes. Aliens withoutemployment authorization are nevertheless entitled to federal employment protection. Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988), cert, denied, 109 S.Ct. 1120 (1989)   [Entitlement to FLSA protection]; Matter of Reyes, 814 F.2d 168 (5th Cir. 1987)- [In FSLA/MASAWPA case, plaintiffs did not have to divulge their alienage as documented/undocumented or their citizenship, as those matters were irrelevant in regard to recovery]; Antenor v. D&S Farms, 88 F.3d 925 (11th Cir. 1996)  [Growers are joint employers with labor contractors for purposes of FLSA and AWPA].

Do pre-employment expenses go to into the calculation of the minimum wage?

Yes. FLSA protection extends to paying for farmworkers transportation to the U.S., for visa and immigration fees, and for pre-employment expenses which primarily benefit the growers. Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228 (11th Cir. 2002);  Martinez-Bautista v. D & S Produce, 447 F.Supp.2d 954, 963-64 (E.D. Ark. 2006) [Farmworkers entitled to pre-employment expenses including transportation costs and visas which should go into the calculation of the minimum wage].

Does FLSA protection include protection from retaliation?

Yes. FLSA protection also includes protection from retaliation. Contreras v. Corinthian Vigor Insurance Brokerage, Inc., 103 F.Supp.2d 1180 (N.D. Cal. 2000),  reported in 11 Interpreter Releases 1158-60 (Aug. 14, 2000).

Do FLSA claims remain post-Hoffman?

 Yes. FLSA claims remain post – Hoffman Plastic. Zavala v. Wal-Mart Stores, Inc., 393 F.Supp.2d 295, 320-32 (D.N.J. 2005) [Hoffman Plastics does not bar FLSA claim by undocumented janitors]; Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y. 2002) [Refused discovery request regarding employee’s immigration status because it is not relevant to back wage claim for violation of FLSA]; Singh v. Jutla & CD. & R’s Oil, Inc., 214 F.Supp.2d 1056 (N.D. Cal. 2002) [Court declined to extend Hoffman to preclude a claim for retaliatory discharge based upon employer informing DHS to arrest undocumented employee]; Ulloa v. Al’s All Tree Service, Inc., 768 N.Y.S. 2d 556 (D.C. 2d 2003) [Hoffman Plastic Compounds, Inc. does not bar FLSA claim].

How does FLSA apply to detained aliens?

At least one court has found that a detained alien has no right under FLSA to receive more than $l/day paid by INS for work because s/he is not an employee, Alvarado-Guevara v. INS, 902 F.2d 394 (5th Cir. 1990), and at least one court has found that requiring persons to work at Oakdale Detention Center does not violate the Thirteenth Amendment.   Channer v. Hall, 112 F.3d 214 (5th Cir. 1997)


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