Greater Protections for Undocumented Workers

July 25, 2017

Workers receive two big wins in federal court to ensure that their immigration status will not preclude them from raising wage and hour claims under the Fair Labor Standards Act.  First, a Federal District Court in Illinois joins New York and other districts across the country to hold that the immigration status of a worker may not be introduced as evidence in a FLSA lawsuit.  Kim v. Hakuya Sushi & Kim, Case No. 15-cv-03747.   The Ninth Circuit went further and found that a worker can sue their former employer’s lawyer for retaliation for contacting U.S. Immigration and Customs Enforcement (ICE) in response to a worker initiating litigation against the employer.  Arias v. Raimondo, Case No. 15-cv-16120, 2017 U.S. App. LEXIS 11074 (9th Cir. 2017).  These rulings fight to ensure that employers cannot escape liability by intimidating their workers with deportation or by framing workers as outsiders or rulebreakers at trial.

All employees, regardless of immigration status, are protected by the provisions of the FLSA and are eligible to recover for improper wage practices.  Any rule to the contrary would “create an incentive for employers to hire illegal workers so they could pay them less than minimum wage.”  Flores v. Amigon, 233 F. Supp. 2d 462 (E.D.N.Y. 2002).  Further, it would have “an in terrorem effect likely to deter FLSA claims” as undocumented workers would withdraw their claims or refrain from bringing an action in the first place.  Id.  In Hakuya Sushi, the court relied on these policy reasons in granting a motion which restricted both parties from introducing “any evidence or argument from which the jury could reasonably infer that Plaintiff was, or still is, an undocumented worker.”  To similar effect, in Arias, the Ninth Circuit extended the reach of the FLSA and who qualifies as an “employer” for allegations related to retaliation.  Thus, an employer’s attorney who contacted ICE to arrest a worker during litigation can be held liable for retaliation under the FLSA even if such an individual would not qualify as an “employer” under the FLSA’s traditional definition of the term.

These decisions are noteworthy as they come down in the wake of the 2016 election where undocumented workers, and their role in the U.S. economy, are at the forefront of contentious national discussions.  As political positions regarding undocumented workers continue to develop, courts across the country have taken long strides to ensure that these workers are heard and protected from unlawful employment practices, regardless of their immigration status.

About Faruqi & Faruqi, LLP

Faruqi & Faruqi focuses on complex civil litigation, including securities, shareholder derivative actions, merger litigation, antitrust, employment law, wage and hour, and consumer class actions.  The firm is headquartered in New York, and maintains offices in Delaware, Pennsylvania, Georgia, and California.  Since its founding in 1995, Faruqi & Faruqi has served as lead or co-lead counsel in numerous high-profile cases which ultimately provided significant recoveries to investors, consumers and employees.

To contact the author of this blog or the offices of Faruqi & Faruqi, please call us at (212) 983-9330 or (877) 476-7797.

About Innessa Melamed Huot

Innessa Huot is a Partner at Faruqi & Faruqi’s New York office and focuses her practice on employment law and wage and hour class action litigation.

Innessa M. Huot photo

Posted by Innessa M. Huot

Partner at Faruqi & Faruqi, LLP
New York Office
Tel: (212) 983-9330
Fax: (212) 983-9331

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