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I-9 E-Verify Immigration Compliance

Undocumented Workers Entitled to Backpay for FLSA Violations; by Bruce Buchanan, Siskind Susser

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In Lamonica v. Safe
Hurricane Shutters, Inc.
(11th Cir. Mar. 7, 2013), an employer
unsuccessfully argued an undocumented worker should not be entitled to backpay under the Fair Labor Standards
Act (FLSA) and cited Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137
(2002).    However,
the Court distinguished Hoffmann and relied upon Patel v. Quality Inn,
846 F.2d 700 (11th Cir. 1988) (undocumented aliens are "employees" who may
recover unpaid wages under the FLSA).


In Hoffman, the
Supreme Court held the NLRB cannot award backpay to undocumented aliens who are
terminated for union activity in violation of the National Labor Relations Act
("NLRA"). However, the Court did not disturb its prior holding that
undocumented aliens "plainly come within the broad statutory definition of
'employee' " contained in the NLRA. Sure-Tan, Inc. v. NLRB, 467 U.S.
883, 892 (1984). Instead, the Court emphasized that it was merely limiting the
remedies available to undocumented aliens under the NLRA. In Quality Inn,
the Court found the statutory definitions of "employee" in the NLRA and FLSA to
be analogous, and drew upon Sure-Tan's analysis of the NLRA in
concluding that undocumented aliens are also "employees" under the FLSA.


The NLRA, which was at issue
in Hoffman, grants the NLRB broad discretion to devise remedies that
effectuate the policies of the Act, subject only to limited judicial review." Sure-Tan,
467 U.S. at 898-99, 104. This limited judicial review includes the authority to
reject the NLRB's chosen remedy where it "trenches upon a federal statute or
policy outside the Board's competence to administer." Hoffman was an exercise
of that judicial authority; the Court rejected the NLRB's remedy on the ground
that it trenched upon the policies underlying the Immigration Reform and
Control Act of 1986 ("IRCA").


In contrast, no
administrative body or court is vested with discretion to fashion an appropriate
remedy under the FLSA. Instead, the FLSA unequivocally provides any employer
who violates its minimum wage or overtime provisions "shall be liable to the
employee or employees affected in the amount of their unpaid minimum wages, or
their unpaid overtime compensation, as the case may be, and in an additional
equal amount as liquidated damages." 29 U.S.C. § 216(b). Unlike the NLRA, there
is nothing in the FLSA that would allow one to conclude that undocumented
aliens, although protected by the FLSA, are nevertheless barred from recovering
unpaid wages thereunder.


In Hoffman, the Court
concluded awarding backpay to undocumented aliens under the NLRA would be
inconsistent with the IRCA, which "'forcefully' made combating the employment
of illegal aliens central to '[t]he policy of immigration law.' " 535 U.S. at
147. The Court reasoned "awarding backpay in a case like this not only
trivializes the immigration laws, it also condones and encourages future
violations." Id. at 150.


In contrast, an FLSA plaintiff
"is not attempting to recover back pay for being unlawfully deprived of a job"
that he could never have lawfully performed. Quality Inn, 846 F.2d at
705. "Rather, he simply seeks to recover unpaid minimum wages and overtime for
work already performed." Id.  In such circumstances, the immigration law
violation has already occurred. The award of unpaid wages does not itself
condone that violation or continue it. It merely ensures that the employer does
not take advantage of the violation by availing himself of the benefit of
undocumented workers' past labor without paying for it in accordance with
minimum FLSA standards.

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