The Warshawsky Law Firm Blog

Monday, February 4, 2013

Are Illegal Immigrants Protected By Labor And Employment Laws?

There are an estimated 12 million illegal immigrants in the United States, including more than 500,000 in New York City.  Many thousands of illegal immigrants participate in the labor force, frequently in the restaurant, janitorial, construction, and domestic service industries.  Are these workers protected by federal, state, and local employment laws?  Generally speaking, yes.

Minimum Wage and Overtime Laws

The federal and state governments require employers to pay minimum wages and overtime (time-and-a-half for every hour over 40 in a work week) to most workers.  The minimum wage and overtime laws are complex and require a case-by-case analysis. 

Currently the federal minimum wage for covered nonexempt employees is $7.25 per hour.  The New York minimum wage is the same.  Where federal and state minimum wages are different, the higher wage applies.  Several states, including California, mandate minimum wages above $7.25 per hour; legislation is pending in New York to raise the minimum wage in this state to $8.50 per hour.

Note:  Employees who customarily receive tips as part of their jobs may be paid a lower cash minimum wage (for example, $5.00 per hour for food service workers).  The amounts of these so-called "tip credits" are established on a state-by-state basis. 

Do these laws apply to illegal immigrants?  Yes.

The federal wage laws are set forth in the Fair Labor Standards Act (FLSA), which covers employees engaged in interstate commerce (very broadly defined) or who work for businesses with at least two employees and total sales of $500,000.  The FLSA does not contain an exception for illegal immigrants.  Neither does the New York Labor Law, which defines an employee as "any individual employed or permitted to work by an employer in any occupation" (although certain occupations are excluded from the law).  Accordingly, illegal immigrants in New York City (and elsewhere) are entitled to the same minimum wage and overtime pay as other workers.

This was the issue in two recent federal district court cases:  Solis v. Cindy's Total Care, Inc., Case No. 10-CIV-7242 (PAE), 2011 WL 6013844 (S.D.N.Y. Dec. 2, 2011), and Angamarca v. Da Ciro, Inc., Case No. 10-CIV-4792 (RLE), 2012 WL 5077480 (S.D.N.Y. Oct. 15, 2012).  In Solis, the court held that an employee's immigration status was not relevant to his or her claims for unpaid wages under the FLSA.  In Angamarca, the court adopted that holding and further ruled that the plaintiff, who had returned to his home country, would be permitted to appear remotely (via videoconference) for his deposition and for trial -- thus making it possible for him to pursue his lawsuit from outside the United States.

New York state courts similarly have held that illegal immigrants are covered by the state wage laws.  For example, in Pineda v. Kel-Tech Construction, Inc., 15 Misc.3d 176, 832 N.Y.S.2d 386 (N.Y. Sup. 2007), the court held that illegal immgrants who worked on municipal construction projects were entitled to be paid "prevailing wages" as mandated by state law.  Likewise, in Garcia v. Pasquareto, 11 Misc.3d 1, 812 N.Y.S.2d 216 (N.Y. Sup. App. Term 2004), the court held that illegal immigrants could bring an action in court for wages earned but not paid.   

In sum, illegal immigrants must be paid proper minimum wages and overtime for all work they actually perform, and they may bring actions in federal or state court to recover unpaid wages, even though they are not authorized to work in this country.

Employment Discrimination Laws

In addition to minimum wage and overtime laws, the federal and state governments (and many local governments, including New York City) prohibit employers from discriminating against employees based on race, sex, age, religion, disability, national origin, and other protected characteristics (which are different depending on the law).

Of course, under federal immigration law, employers can -- indeed must -- discriminate against employees on the basis of immigration status.  That is, employers are prohibited from hiring and employing workers who are not authorized to live and work in the United States.  Technically speaking, therefore, no illegal immigrants should be working in the country, but many do.  Just as they are protected by minimum wage and overtime laws, are they protected by employment discrimination laws?  Yes, but with certain limitations.

The various federal, state, and city anti-discrimination laws do not contain exceptions for illegal immigrants.  For example, the main federal anti-discrimination law, Title VII of the Civil Rights Act of 1964, applies to persons "employed by an employer."  The U.S. Equal Employment Opportunity Commission (EEOC) has declared it a "settled principle" that "undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work."  Likewise, the New York City Human Rights Law, which is one of the most protective laws, prohibits employers from discriminating against "any person."

Consequently, employers who employ illegal immigrants are not allowed to discriminate against them, any more than they are allowed to discriminate against other employees.  But this does not mean that illegal immigrants are entitled to all of the protections and remedies provided by these laws.

In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the U.S. Supreme Court held that an illegal immigrant who had been illegally terminated in retaliation for union activity was not entitled to receive back pay for the period following his termination.  Back pay is a common remedy in wrongful termination cases and refers to the amount of money that the employee would have been paid if he had not been terminated.  That is, it refers to income that the employee theoretically would have earned, not to income that the employee in fact earned. Under Hoffman, illegal immigrants are not entitled to back pay, i.e., pay for work they did not in fact perform.  The Hoffman ruling applies to federal law claims.

Consequently, if an illegal immigrant is terminated from his employment based, for example, on religion or age or disability, under federal law (Title VII or the ADEA or the ADA) he will not be allowed to recover back pay as part of any lawsuit.  Logically, the Hoffman ruling also covers non-promotion claims, i.e., where the employee claims he should have been promoted to a higher-paying position but was not due to some form of illegal discrimination.  In those situations, the employee seeks compensation for work he did not actually perform, which is barred to illegal immigrants under Hoffman.  (As several courts have noted, Hoffman does not bar illegal immigrants from recovering wages owed to them for work they performed.  See, e.g., Flores v. Amigon, 233 F. Supp.2d 462 (E.D.N.Y. 2002).)       

Nothing in the Hoffman decision, however, appears to preclude an illegal immigrant from being compensated for mental and emotional distress caused by harassment and other forms of workplace discrimination that he or she actually suffered.

Moreover, New York courts have not applied the Hoffman ruling to state law claims.  The New York Court of Appeals has held that illegal immigrants who are injured on the job may recover lost income damages (i.e., for work they did not actually perform) as part of the compensation they receive under state labor law.  See Balbuena v. IDR Realty, LLC, 6 N.Y.3d 338 (2006); see also Janda v. Michael Rienzi Trust, 78 A.D.3d 899, 912 N.Y.S.2d 237 (2d Dept 2010) (same).  Importantly, the U.S. Court of Appeals for the Second Circuit (which covers New York) has held that federal immigration law does not preempt state labor law on this issue.  See Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219 (2d CIr. 2006).  Arguably, the Balbuena decision supports the position that illegal immigrants are entitled to back pay damages under state and city anti-discrimination laws.

The bottom line is that illegal immigrants are protected by federal, state, and local employment laws, are entitled to be paid for all hours worked (including overtime and other forms of mandatory pay), and are entitled to work in an environment free from illegal discrimination.  But they may not be entitled to the full range of remedies available under these laws, particularly under federal law.  This is a complex issue that requires careful case-by-case analysis.

Lastly, it must be emphasized that, even if illegal immigrants are covered by employment laws, this does not mean that they cannot be detained, prosecuted, and/or deported by federal immigration authorities.  This factor must be considered very seriously when deciding whether or not to file an employment lawsuit on behalf of an illegal immigrant.   

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