Two federal appellate courts have ruled this year that, as one of them put it, "aliens, authorized to work or not, may recover unpaid and underpaid wages under the [federal Fair Labor Standards Act]." This was the July 29 conclusion of the Eighth Circuit U.S. Court of Appeals (with jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) in Lucas v. Jerusalem Cafe, LLC.

The Eighth Circuit took note of a similar determination in March by the Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia) that "there is nothing in the FLSA that would allow us to conclude that undocumented aliens, although protected by the Act, are nevertheless barred from recovering unpaid wages thereunder." In Lamonica v. Safe Hurricane Shutters, Inc., the Eleventh Circuit found that an undocumented plaintiff's "ability to recover unpaid wages under the FLSA does not depend upon his immigration status."

Although a number of lower federal courts had said this, before now only one appellate case (from the Eleventh Circuit in 1988) had considered the issue head-on.

Different Laws, Different Results

Uncertainty swirled around the issue after the U.S. Supreme Court's 2002 decision in Hoffman Plastic Compounds v. NLRB. The Court ruled that federal immigration law and policy precluded an award of backpay under the National Labor Relations Act to unauthorized aliens for work they would have performed had they not been unlawfully laid off.

Soon thereafter, the U.S. Labor Department took the position that Hoffman Plastic did not prevent undocumented workers from seeking FLSA-required wages. In its view, Hoffman Plastic did not foreclose a claim for work already performed, as distinguished from work that has not yet been done and could not lawfully be done. As the Eighth Circuit observed, USDOL's policy continues to be that it will enforce the FLSA "without regard to whether an employee is documented or undocumented."

The Lucas and Lamonica courts distinguished Hoffman Plastic in this same way. The Eighth Circuit also reasoned at length that its decision was supported by the plain words of the FLSA and was consistent with, and would in fact further, federal immigration policy.

Still Open Questions

The Eighth and Eleventh Circuits' decisions resolve the question for now only in their particular jurisdictions.  Moreover, they did not deal with every issue that could arise.

For example, the FLSA calls for an individual who is awarded unpaid wages to receive "an additional equal amount as liquidated damages."  One of the Eighth Circuit judges suggested that whether this will always be appropriate in the case of an unauthorized alien worker "is not free from doubt."

As another illustration, it remains unclear whether or to what extent FLSA remedies would be available to such a worker who had suffered unlawful retaliation under that law. For instance, would it be proper to award lost wages for the work he or she would have done but for a retaliatory discharge? Even USDOL's enforcement policy (last revised in 2008) says that the agency "is still considering the effect of Hoffman Plastics [sic]" where retaliation is concerned.