The Fair Labor Standards Act (FLSA) establishes minimum wage and overtime protections for many workers in America, and it is enforced by the Wage and Hour Division of the U.S. Department of Labor. Employees are entitled to receive minimum wage and overtime protections under the FLSA regardless of their immigration status. Courts have held that “undocumented workers are ‘employees’ within the meaning of the FLSA and that such workers can bring an action under the act for unpaid wages and liquidated damages.” Patel v. Quality Inn S., 846 F.2d 700, 706 (11th Cir. 1988).
The FLSA also prohibits retaliation against any person who has filed a complaint with the Department or an employer (orally or in writing). Retaliation against an employee who has cooperated in an FLSA investigation is also prohibited. It is unlawful for an employer to discriminate or terminate workers in retaliation for asserting a claim for minimum wage or overtime compensation or for cooperating with an FLSA investigation. These protections apply regardless of immigration status.
It would also be unlawful for an employer to report undocumented workers to immigration authorities in retaliation for filing a wage claim. While there is a chance that the employer may report the worker to immigration authorities in retaliation for maintaining or participating in an FLSA claim, even though it is unlawful for them to do so, it will not prevent the employee from being able to recover back pay for the work they have already performed.
Reporting undocumented workers to immigration authorities may also have a negative impact on the employer if they are found to have knowingly hired undocumented workers. The federal agency responsible for immigration work site enforcement is Immigration Customs and Enforcement (ICE). Employers may be subjected to civil and criminal penalties for hiring undocumented immigrant workers. Civil penalties can range from a minimum of $375 per unauthorized worker for a first offense up to a maximum of $1,600 per worker for a third or subsequent offense. If you are found to have engaged in a “pattern and practice” of hiring undocumented workers, then you can be fined up to $3,000 per employee and/or imprisoned for up to six months.