The Eleventh Circuit has found that an individual who is not authorized to work in the United States can recover alleged unpaid wages under the FLSA, rejecting an employer’s argument that Supreme Court’s decision in Quality Inn in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), bars such claims.
In so holding, the Eleventh Circuit joins other courts that have held the rule set forth in Hoffman Plastic (prohibiting the NLRB from awarding back pay to employees unauthorized to work in the U.S.) is limited to claims under the National Labor Relations Act and has no bearing on an individual’s authority to recover under the FLSA for work already performed. Lamonica v. Safe Hurricane Shutters, 2013 U.S. App. LEXIS 4599 (11th Cir. 2013). “The Act unequivocally provides that any employer who violates its minimum wage or overtime provisions ‘shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages’ . . . 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,” the Court held. This decision joins a trend in the federal courts, though some judges have expressed reservations regarding the appropriate resolution of the tension between the FLSA and the Immigration Reform and Control Act (“IRCA”). Jin-Ming Lin v. Chinatown Rest. Corp., 771 F. Supp. 2d 185 (D. Mass. 2011).
Employers who hire undocumented or unauthorized workers cannot, at least in the Eleventh Circuit, use their status as a defense to liability to alleged unpaid wages for time worked under the FLSA.
The Court also addressed an unrelated issue—the proper calculation of overtime due to a worker paid on a salary basis. The Court ruled “[i]f the employee is employed solely on a weekly salary basis, the regular hourly rate of pay, on which time and a half must be paid, is computed by dividing the salary by the number of hours which the salary is intended to compensate." Citing 29 C.F.R. § 778.113(a). Even as the Eleventh Circuit was clarifying this “intended to compensate” rule, a district judge within its boundaries, Judge Richard Story of the Southern District of Georgia, reached an identical conclusion. Martin v. S. Premier Contrs., 2013 U.S. Dist. LEXIS 30017 (S.D. Ga. Mar. 6, 2013). This is a positive development for employers who sometimes face claims by employees who are paid a weekly salary that damages for unpaid overtime must be calculated by considering the salary to cover only the first forty hours of work, even where the intent that the salary cover all hours worked is clear. Clements v. Serco, Inc., 530 F.3d 1224 (10th Cir. 2008)(employee understanding that “they would not be docked when they worked fewer than forty hours and would not be paid more when they worked over forty hours” was “sufficient to establish the Employees understood they would receive a fixed salary” and thus salary was intended to cover all hours worked).
Lamonica is an employer-friendly decision, upholding an important rule with respect to calculation of damages. Its “clarification” with respect to undocumented workers’ right to recover should come as no surprise to the employer community, which should take steps to comply with both statutes implicated by this inquiry (FLSA and IRCA).