Can undocumented workers sue for unpaid wages? This question has been addressed by many courts, and the answer is yes. Undocumented workers are frequent victims of wage and overtime exploitation, and it would be extraordinarily bad policy to allow employers a free pass because they hired an undocumented worker and then failed to pay them. It is the employer’s job to verify (via form I-9) whether a worker can legally work in the U.S. An employer cannot hide behind its own dereliction of duty to escape liability under the wage and overtime laws.
The Eleventh Circuit Court of Appeals recently addressed this in Lamonica v. Safe Hurricane Shutters, Inc., 711 F. 3d 1299 (11th. Cir. 2013), finding that unpaid workers could sue under the Fair Labor Standards Act (“FLSA”). Here in Massachusetts, the U.S. District Court in Jin-Ming Lin v. Chinatown Restaurant Corp., 771 F. Supp. 2d 185 (D. Mass. 2012) reached the same conclusion. These were cases under the federal wage laws, but the state courts here in Massachusetts will almost certainly reach the same conclusion. The Massachusetts wage and overtime laws are even more employee-friendly than their federal counterparts. The Massachusetts Minimum Wage Law specifically states, “It is hereby declared to be against public policy for any employer to employ any person in an occupation in this commonwealth at an oppressive and unreasonable wage.”
But what about retaliation against undocumented workers who sue to get unpaid wages and overtime? Sometimes employers threaten to report workers to immigration authorities if they sue. This is unlawful. Reporting undocumented workers after they have filed a lawsuit is retaliation under wage laws, so if this happens, the employee can amend their complaint to add additional claims. See, for example, Contreras v. Corinthian Vigor Insurance Brokerage, 103 F. Supp. 2d 1180 (N.D. Cal. 2000) (concluding that an employer’s report to then-INS and Social Security Administration of an undocumented worker’s status violated anti-retaliation provisions of the FLSA).
Also, the Department of Labor (“DOL”) and Department of Homeland Security, which is in overall control of the enforcement of immigration laws, have entered into an agreement (PDF) which generally prohibits immigration work site enforcement during a DOL investigation and related proceedings. So, sometimes it is wise to report the unpaid wage claims to the DOL in addition to bringing a lawsuit in order to get additional protection under that agreement.