There are millions of illegal aliens working in the U.S. today. There’s also a record number of FLSA wage and overtime lawsuits. It was inevitable the two issues would overlap.  

Remember: The same FMLA rules apply to illegal aliens who are hired inadvertently (i.e., the employer makes a mistake in I-9 verification) or knowingly.

In the last few years, several courts have given even illegal immigrants the right to sue employers for violations of FLSA’s reasonable hour, working condition and payment requirements.

First shoe dropped in ‘06

Two years ago, a New York appeals court ruled that even undocumented workers may be entitled to benefits and lost wages in disability cases. In that case (Balabuena v. IDR Realty, LLC), a Mexican man who sneaked into the U.S. illegally, later sued his construction-industry employer.

The company never attempted to verify his status and learned after the fact the employee wasn’t legally entitled to work in this country.

So the firm argued U.S. immigration laws (the Immigration and Reform Control Act, or IRCA) trump state labor laws, which allowed injured employees to claim benefits and wages.

But the appeals court ruled IRCA doesn’t cancel out state disability laws if an employer fails to follow federal immigration status-checking laws.

More recently, a second shoe dropped.

A federal court recently permitted 14 illegal immigrants to join a class-action wage-and-hour lawsuit filed against Florida-based janitorial firm Rosenbaum-Cunningham. The illegal immigrants – like the other plaintiffs – were subject to collect back pay and overtime.

Prosecutors claim the firm hired hundreds of illegal workers without job applications, W-4 tax withholding or I-9 employment eligibility forms, W-2 wage and tax statements. In addition, the firm allegedly failed to pay $18.6 million in Social Security, Medicare, and federal employment taxes on wages — both for its legally and illegally employed workers.

Staying protected

As long as you make a good-faith effort to verify immigrant employees’ work status and act according to FLSA regulations, the law is on your side if it turns out an employee is an illegal immigrant and he or she attempts to sue your firm. Best practices:

• Require originals or certified copies of IDs and work-permit documents
• Have job seekers fill out and sign written applications, with a section outlining your policy of hiring only documented aliens, and
• Retain the paperwork three years.