Immigrant Workers Have Full Wage Rights Too: What the FLSA Guarantees Regardless of Status

If you worked, you earned. The Fair Labor Standards Act applies to all workers in the United States, regardless of immigration status. Federal law guarantees minimum wage, overtime, recordkeeping, and protection from retaliation to every worker, documented or undocumented, citizen or non-citizen. However, millions of immigrant workers in this country face routine wage theft. In many cases, their employers calculate that fear of immigration consequences will keep them quiet. The law does not allow that calculation. In fact, both federal courts and the U.S. Department of Labor have made clear, repeatedly, that immigration status does not erase the right to receive pay for work performed. Here is what every immigrant worker should know about the wage protections the law actually guarantees.

The Law: The FLSA Covers Every Worker

The Fair Labor Standards Act defines an “employee” using the broadest language Congress has ever used in any employment statute. In fact, the text covers “any individual” whom an employer “suffers or permits to work.” Nothing in the statute makes coverage depend on the worker’s country of origin, language, visa status, or work authorization. As a result, the protections of the Act extend by their terms to every worker who performs covered work for a covered employer.

The U.S. Department of Labor has taken this position consistently for more than 80 years. For example, in 1942, just four years after Congress enacted the FLSA, the Wage and Hour Administrator opined that even enemy prisoners of war working in the United States could recover the minimum wage. Since then, the Department’s official position has held that the FLSA applies to all employees regardless of immigration status. In addition, federal courts have repeatedly agreed.

What Courts Have Said

Two federal circuits have directly held that the FLSA’s minimum wage and overtime provisions protect undocumented workers. As a result, those workers may sue to recover unpaid wages for work performed.

In Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988), the United States Court of Appeals for the Eleventh Circuit became the first federal appeals court to hold that undocumented workers may recover unpaid wages under the FLSA. The court reasoned that excluding undocumented workers from the Act’s protections would actually encourage employers to hire and exploit them, undermining both the FLSA and federal immigration policy.

In Lucas v. Jerusalem Café, LLC, 721 F.3d 927 (8th Cir. 2013), the Eighth Circuit reached the same conclusion. That court held that “aliens, authorized to work or not, may recover unpaid and underpaid wages under the FLSA.” It rejected the employer’s argument that hiring unauthorized workers somehow exempted the employer from federal wage law. In March 2014, the Supreme Court declined to review the decision. Furthermore, the Eleventh Circuit reaffirmed its position in Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013), holding that “an undocumented alien’s ability to recover unpaid wages under the FLSA does not depend upon his immigration status.”

Numerous district courts have reached the same conclusion in cases involving restaurant workers, construction laborers, agricultural workers, domestic workers, garment workers, hotel staff, and other industries where immigrant workers are concentrated.

The Hoffman Plastic Misunderstanding

Some employers cite Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), to argue that undocumented workers cannot recover wages. That argument misreads the case. Hoffman Plastic was a National Labor Relations Act case about back pay for time the worker did not work, awarded as a remedy for unlawful firing. The Supreme Court held that the National Labor Relations Board could not award back pay for years a worker would have worked but for an unlawful termination, because doing so would conflict with federal immigration policy by, in effect, paying for work that could never lawfully have been performed.

That decision says nothing about wages owed for work that was actually performed. The FLSA protects workers for hours they have already worked. Courts have repeatedly drawn this distinction and applied it. As the Eighth Circuit put it in Lucas, the FLSA “does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized aliens in violation of federal law.”

What the FLSA Protects

Every covered worker, regardless of status, generally has the right to:

• The federal minimum wage of $7.25 per hour, or the higher applicable state or local minimum.
• Overtime pay at one-and-one-half times the regular rate for hours worked over 40 in a workweek.
• Pay for all hours actually worked, including pre-shift setup, post-shift cleanup, training, mandatory meetings, and other work time.
• Tips, in tipped occupations. Federal law prohibits employers, managers, and supervisors from keeping any portion of tipped employees’ tips.
• Accurate pay records. Employers must maintain records of hours worked and wages paid.
• Protection from retaliation for asserting wage rights, including the right to file a complaint or testify in a wage proceeding.

In addition, state laws often provide extra protections, including higher minimum wages, longer statutes of limitations, additional damages, and broader anti-retaliation rules. For example, California and New York provide significantly stronger wage protections that apply to all workers regardless of immigration status.

Common Exploitation Patterns

Wage theft against immigrant workers tends to follow recognizable patterns. Workers who recognize them often have valid claims.

Below-Minimum-Wage Pay

An employer pays a flat daily or weekly rate that, divided by actual hours worked, falls below the applicable minimum wage. Some employers calculate that workers will not complain because of immigration concerns.

No Overtime

The worker logs 50, 60, or 70 hours per week. However, the employer pays straight time for every hour or a flat amount that ignores the overtime owed for hours over 40.

Off-the-Clock Work

The employer requires the worker to arrive early to set up, stay late to clean up, attend meetings, or perform work from home. However, the employer pays for none of that time.

Stolen Tips

In restaurants, hotels, and similar workplaces, the employer keeps a portion of tips, distributes tips to managers or non-tipped staff, or fails to satisfy the strict notice and recordkeeping requirements for taking a tip credit.

“Cash Under the Table” Pay

The employer pays in cash without records or pay stubs, often at below-minimum-wage rates. The lack of records does not eliminate the worker’s claim. Workers who keep their own contemporaneous notes of hours and pay often prevail in wage cases despite missing employer records.

“Independent Contractor” Misclassification

The employer issues a 1099 instead of a W-2, calls the worker a “contractor” or “consultant,” and treats the worker as having no overtime rights. If the employer controls when, where, and how the work is done, the worker is generally an employee under the FLSA’s economic reality test, regardless of the label.

Illegal Deductions

The employer charges the worker for uniforms, tools, transportation, housing, or training, and those charges bring the worker’s effective hourly rate below the minimum wage.

Retaliation and Immigration Threats

Federal law prohibits retaliation against any worker who files a wage complaint, cooperates with an investigation, or testifies in a wage proceeding. Section 215(a)(3) of the FLSA makes it unlawful for an employer to discharge, demote, or otherwise discriminate against an employee for asserting these rights.

Importantly, that protection includes retaliation through immigration-related threats. An employer who threatens to contact immigration authorities, reports a worker to immigration authorities, or otherwise uses immigration status as a tool of intimidation in response to a wage complaint may be liable for retaliation. Courts have awarded substantial damages in retaliation cases involving immigration-based threats, including compensatory damages, punitive damages, and reinstatement.

Several states have enacted additional protections. New Jersey, for example, recently enacted a law specifically penalizing employers who disclose or threaten to disclose an employee’s immigration status as retaliation for a wage complaint. California, New York, Illinois, and other states have similar protections.

U-Visa and T-Visa: Immigration Options for Crime Victims

Workers who suffer certain workplace crimes may qualify for immigration relief separate from any wage claim. For example, two options often apply in workplace situations:

• U-visas serve victims of certain qualifying crimes, including extortion, obstruction of justice, witness tampering, perjury, blackmail, and other crimes that may arise in workplace contexts. U-visa applicants generally must cooperate with law enforcement and provide a certification of helpfulness.
• T-visas serve victims of severe forms of human trafficking, including labor trafficking. Labor trafficking can include situations where workers face force or coercion into labor through threats, debt bondage, or abuse of legal process (such as immigration threats).

Workers pursue these visa options through United States Citizenship and Immigration Services, often with the help of an immigration attorney. These visas exist separately from any wage and hour claim. However, the same facts can support both at the same time. As a result, workers who face exploitation may benefit from consulting both an employment attorney and an immigration attorney.

What You Can Recover

Under the FLSA, a worker who prevails on a wage claim may recover the same remedies regardless of immigration status:

• Unpaid back wages for the limitations period.
• Liquidated damages equal to the unpaid wages under 29 U.S.C. § 216(b), effectively doubling the recovery in many cases.
• Attorney’s fees and court costs, which the FLSA generally requires the employer to pay when the worker prevails.
• Reinstatement, lost wages, and punitive damages in successful retaliation claims under 29 U.S.C. § 215(a)(3).

In addition, state laws may add longer statutes of limitations, additional damages, and personal liability for individual managers and owners. Still, the amount any individual worker may recover depends on the specific facts of the case. Past case outcomes do not guarantee a similar result in any future matter.

Real-World Examples of Immigrant Worker Wage Cases

Time Limits

Workers must generally file federal FLSA claims within two years of the violation. For willful violations, the window extends to three years. However, state law lookback periods vary. For example, New York provides six years under NYLL § 198(3). Similarly, California allows three years for most wage claims, with up to four years available under the Unfair Competition Law. In contrast, Texas requires workers to file state Payday Law claims within 180 days through the Texas Workforce Commission. Still, FLSA windows apply separately in Texas.

Acting promptly preserves the largest possible recovery. In addition, the statute of limitations runs from the date of the violation, regardless of when the worker discovered it.

What to Do If Your Employer Has Not Paid You Properly

Keep Records

First, keep your own records even when your employer does not provide pay stubs, time sheets, or written records. Note your start and end times each day, the work you performed, who supervised you, and the amount the employer paid you. A simple notebook, a phone app, or a calendar entry works well. In fact, courts often accept personal records as decisive evidence in wage cases.

Save What the Employer Gives You

Next, save everything your employer hands you: pay stubs, checks, cash envelopes, work schedules, text messages, and any written communication about your work or pay. All of these can support a wage claim.

Document Any Threats

In addition, if your employer threatens to contact immigration authorities, threatens to fire you for raising wage concerns, or otherwise tries to use your status against you, write down the exact words, the date, and any witnesses. As a result, you may support a separate retaliation claim with substantial damages.

Talk to Other Workers

Wage theft against immigrant workers often affects an entire workforce. Therefore, a collective claim by multiple workers can be much more powerful than an individual claim alone.

Consult an Employment Attorney

Finally, consult an employment attorney who handles wage and hour cases. Many attorneys handle such cases on a contingency-fee basis. As a result, a worker generally pays no attorney’s fees unless the case produces a recovery. In addition, consultations remain confidential and do not depend on the worker’s immigration status. If immigration consequences concern you, an employment attorney can also connect you with an immigration attorney to evaluate U-visa, T-visa, and other options.

You Earned It. The Law Says You Get to Recover It.

Federal courts and the U.S. Department of Labor have been clear for decades: immigration status does not erase the right to receive pay for work performed. The FLSA protects every worker. In addition, employers who exploit immigration concerns to commit wage theft face exposure to back wages, liquidated damages, retaliation claims, and attorney’s fees. Whether any particular worker has a valid claim depends on the specific facts of their employment and the applicable law. Still, if your employer has underpaid you, denied you overtime, threatened you with immigration consequences for raising concerns, or otherwise exploited you at work, the law may give you the ability to recover those wages, plus damages and interest.

Josephson Dunlap, Lawyers for the Workers®, represents employees nationwide in wage and hour matters and welcomes consultations from immigrant workers regardless of status. We offer confidential consultations at no cost. In addition, our team includes Spanish-speaking staff.