Is Overtime Pay a Right for Undocumented Immigrant Workers?

It occurs far too often in the United States that an employer, aware of an employee’s immigration status, seeks to take advantage of that status by requiring the worker to work hours exceeding forty while keeping their pay to one low rate to avoid exceeding their own salary budget.  The power dynamic of an employer-employee relationship, when compounded with the uncertainty of employment as an undocumented worker, may make it feel impossible to receive justified pay for your work.  However, the applicable law may protect you more than you think.

The Immigration Reform and Control Act (“IRCA”) specifically states that “it is unlawful for a person to hire, or to recruit for a fee, for employment in the United States…an alien knowing the alien is an unauthorized alien.” 8 U.S.C. 1324a. However, the minimal punishments inflicted for violations of the IRCA remain so small that the benefit of employing an undocumented worker far exceeds the risk for many employers. As such, employers often get away with hiring undocumented workers, and because these workers are unaware for their rights to fair pay, many employers take advantage of those workers by failing to pay them at least the minimum wage rate or overtime compensation. But can they legally take advantage of undocumented workers like this?

Well, in both New York and at federal level, employers are not allowed to take advantage of undocumented workers in this manner.

Undocumented workers in the state of New York, like all other workers, are subject to the New York Labor Law (“NYLL”) and the Fair Labor Standards Act (“FLSA”).  The incentive to protect undocumented workers is clear, as the application of the NYLL and FLSA to undocumented workers prevents the employer from maximizing the benefit of taking advantage of the undocumented worker through reduced wages or failure to pay overtime wages.

As such, an undocumented worker is still eligible for overtime pay.  According to both the FLSA and NYLL, that payment shall be at a minimum one and one-half their rate of regular pay for all hours that exceed forty in one workweek.  Additionally, an undocumented immigrant receives protection as an FLSA claimant, so the lack of immigration status is not a detriment to bringing forward a claim, and immigration status becomes irrelevant.

For more information relating to discrimination or wage and hour violations against undocumented workers, or to speak to someone about your potential claim, please contact Borrelli & Associates, P.L.L.C.