Immigration Status and the FLSA

If you are an undocumented foreign worker in Georgia, do you have rights under the Fair Labor Standards Act? It looks like you should have at least some limited rights, if Georgia courts follow a federal court in Washington state, which recently ruled that a person’s immigration status does not affect a claim under the FLSA.

The case, BAILON v. SEOK AM#1 CORP (W.D.Wash.12-9-2009), Case No. C09-05483JRC, concerned the defendant’s requests for discovery that went to the issue of their immigration status.

The case also had a Defendant’s counterclaim, which was dismissed on similar grounds.

The Plaintiff had sued under the FLSA for back wages. Defendant filed the usual affirmative defenses (laches, etc.), counterclaimed for indemnification from the Plaintiff, and asked for discovery based on finding out the employee’s immigration status.

The court said no to all three claims, stating: “After carefully reviewing the case law and the facts as alleged by the parties, it appears that plaintiffs’ immigration status is irrelevant to any issue in this case. While the Supreme Court ruled that immigration status bars recovery for future wages, see Hofman Plastics Compounds v. NLRB, 535 U.S. 137, 149, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), if the wage claim involves damages for past work performed, then the immigration status of the plaintiff is irrelevant.”

Because of that ruling, the Court granted the defendant’s motion for a Protective Order to keep the defendant from discovering the plaintiffs’ immigration status.

Regarding the defendant’s attempts to recoup the costs of the action against an employee the court said: “No cause of action for indemnity by an employer against its employees who violate the Act appears in the statute, nor in forty years of its existence has the Act been construed to incorporate such a theory.”

This is a clear win for undocumented aliens who seek protection under the FLSA. If you are in this situation in the state of Georgia, you should immediately contact a Georgia employment attorney to see if this case affects your status.