Employer Must Pay Undocumented Workers for Wage and Hour Violations


By Joanne Deschenaux May 25, 2018

Three plaintiffs who sued a furniture manufacturer for unpaid overtime wages and failing to provide meal and rest periods could collect a total of $140,000, even though they were not authorized to work in the United States due to their immigration status, the California Court of Appeal ruled. 

The plaintiffs claimed that from May 2010 through May 2014, they worked 10 or more hours a day without a second meal break. The manufacturing company also allegedly failed to pay overtime wages or provide rest breaks. At the time the plaintiffs began work, the company was aware that they were not authorized to work in the United States.

The plaintiffs sued, and after a trial, on Nov. 4, 2015, the court entered judgment in their favor for about $140,000. The company appealed, claiming it could not be held liable for the wages sought because it knew when it hired the plaintiffs that they didn't have work authorization.

The company based this argument on the decision in a California Supreme Court case, Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407.

In Salas, the plaintiff sued his former employer for failing to reasonably accommodate his physical disability and refusing to rehire him in retaliation for filing a workers' compensation claim. After the complaint was filed, the employer learned that the plaintiff used another man's Social Security number to gain employment. The trial court dismissed the lawsuit, reasoning that the plaintiff's claims were barred because he had misrepresented his work eligibility.

[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements in the United States]

The California Supreme Court reversed, holding that the federal Immigration Reform and Control Act doesn't exclude unauthorized workers from coverage under the state's employment laws. However, the state high court said, federal immigration law does bar an award of lost pay damages "for any period of time after an employer's discovery of the employee's ineligibility under federal law to work in the United States."

The Salas court noted that its analysis was limited to employers that discover an employee's unauthorized status after the worker has been discharged or not rehired. The Salas opinion specifically stated that it did not address "the situation in which an employer has knowingly hired or continued to employ an unauthorized alien in violation of federal immigration law."

Here, the court said, the employer conceded knowledge of the plaintiffs' unauthorized status at the time they began work. Since the company was aware of the plaintiffs' status while they were employed, it actively participated in violating federal immigration law, the court said. And, under this circumstance, the Salas court's holding did not apply and the plaintiffs were not barred from recovering their lost wages.

Lepe v. Luft Enterprises, Calif. Ct. App., No. E067382 (May 10, 2018).

Professional Pointer: Undocumented workers in California are entitled to most of the legal rights and remedies provided to employees by state and federal laws. This includes workplace safety and workers' compensation laws, in addition to nondiscrimination and wage and hour laws.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


Job Finder

Find an HR Job Near You
Search Jobs
Post a Job

Earn a SHRM Talent Acquisition Specialty Credential.

Do you have what it takes to win the war for talent? Find out.

Do you have what it takes to win the war for talent? Find out.



Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 10,000 companies

Search & Connect