On December 19, 2013, the U.S. District Court for the Southern District of New York denied the defendant's motion for discovery regarding the plaintiffs' immigration status in Colon v. Major Perry St., Inc., No. 1:12-cv 03788 (S.D.N.Y. 2013). In Colon, several workers, some of whom are undocumented aliens, sued under the Fair Labor Standards Act ("FLSA") to recover minimum and overtime wages that the employer refused to pay. The defendant argued that under the Second Circuit's decision inPalma v. NLRB, 723 F.3d 176 (2nd Cir. 2013), the plaintiffs were barred from collecting back pay under the FLSA if they were here illegally. In Palma, the Second Circuit held that the workers, who were undocumented aliens at the time they were fired, were precluded from collecting back pay under the National Labor Relations Act.

The district court explained that the text of the FLSA made clear that its provisions were "unambiguously" intended to apply to undocumented workers by defining the term "employee" as "any individual employed by the employer." The court further noted that the FLSA focuses on back pay as a remedy to ensure that employers don't gain an advantage by violating immigration laws. If this were not the case, then employers would be exempt from wage and hour standards for undocumented employees. Applying the FLSA to undocumented workers, the court found, furthers the purpose of the Immigration and Reform Control Act—to punish employers for employing undocumented workers.

This case serves as another critical reminder to employers that unauthorized aliens are covered under the FLSA's definitions of an "employee" and, thus, are entitled to the statutory mandated wages for work performed. In other words, employers that hire unauthorized aliens still must comply with federal labor and employment laws.