For decades a few unscrupulous employers have used undocumented workers in order to increase company profits by paying substandard wages or offering substandard working conditions. For example, some employers have required undocumented workers to put in work hours well in excess of full-time hours, but then refuse to pay overtime wages. They may also require work for less than minimum wage. The question arises as to whether those practices violate the Fair Labor Standards Act (FLSA).

Some employers argue that it does not violate this Act because an undocumented worker is not guaranteed the protections of the FLSA. Thus, an employer feels entitled to violate the law if the worker is not documented. They point to the United States Supreme Court case, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S. Ct. 1275 (2002) which involved the National Labor Relations Act (NLRA) and not the FLSA.  In the Hoffman case an undocumented alien was involved in efforts to assist with union organization. The employer laid off the worker for supporting the union organizing campaign.

The National Labor Relations Board pursued violations of the NLRA. The Supreme Court eventually heard the case and ruled that the NLRB was precluded from awarding the employee back pay because that was contrary to the Immigration Reform and Control Act of 1986. Backpay would violate federal immigration policy and would exceed the NLRB's authority.

After this case, at least one employer felt that it could take advantage of undocumented workers by refusing to pay them overtime wages required by the FLSA. A suit was filed on behalf of workers seeking overtime pay for work already performed.  The district court allowed the case to go to a jury trial, and the jury found in favor of the workers. An appeal followed.

In Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (11^th Cir. 2013), the 11^th Circuit noted that it had “previously held that undocumented aliens are ‘employees' who may recover unpaid wages under the FLSA. Patel v. Quality Inn S., 846 F.2d 700, 706 (11th Cir. 1988).”  The employer argued that Quality Inn  was overruled by the above Hoffman  case.

 However, the 11^th Circuit rejected that noting that it was bound by its earlier holding, because the Supreme Court did not rule on the FLSA statute, but rather on the NLRA and actions of the NLRB. It would take a Supreme Court ruling on the FLSA or an en banc determination by the entire 11^th Circuit panel of judges to overturn the prior 11^th Circuit precedent.

Thus, regardless of whether the worker is documented or not, the FLSA applies, and an employer may not take advantage.  The Lamonica case is still cited, in fact, and rather recently by Prado v. Portnoy, No. 2:23-cv-3540, 2024 U.S. Dist. LEXIS 52529 (S.D. Ohio Mar. 25, 2024).  Two wrongs still don't make a right.

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