Unauthorized Aliens Are Entitled to FLSA Protection

Barkan Meizlish , May 14, 2015

Last year, the 8th Circuit faced the issue of whether unauthorized aliens were “employees” under the FLSA and therefore entitled to the overtime and minimum wage protections under the Fair Labor Standards Act (FLSA).  In that case, six unauthorized workers sued their employer for failing to pay minimum wage and overtime.  Following a jury verdict in favor of the workers, the employers appealed to the 8th Circuit, which ultimately ruled that the unauthorized workers were entitled to minimum wage and overtime pay.

Looking to the statutory language, the court concluded that the FLSA’s definition of “employee” extended to unauthorized aliens.  The court emphasized that Congress has limited this broad definition to certain types of workers, yet notably it did not exclude unauthorized aliens from that definition.  If Congress intended to exclude unauthorized aliens, the court reasoned, it would have explicitly done so.  Additionally, the 8th Circuit noted that no conflict exists between the Immigration Reform and Control Act (IRCA), which makes it unlawful for employers to hire unauthorized workers, and the FLSA, which requires every employer to pay each employee minimum wage and overtime pay. The two statutes “work in tandem” to deter the hiring of unauthorized workers by requiring employers to provide fair working conditions, regardless of an employee’s immigration status.

Source:  Jennifer Andres, Unauthorized aliens are ‘employees’ under FLSA, MISSOURI EMPLOYMENT LAW LETTER, Vol. 23, No. 7 (September 19, 2013), http://www.natlawreview.com/article/unauthorized-aliens-are-employees-under-fair-labor-standards-act-flsa. 

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