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Made It To America? You Deserve To Be Paid!

Undocumented Workers Are Entitled to Protection Under The Fair Labor Standards Act

On March 6, 2013, the Eleventh Circuit Court of Appeals, which has jurisdiction over Florida, Georgia and Alabama, ruled that an undocumented employee may seek relief under the Fair Labor Standards Act (commonly referred to as the “FLSA”) for wages and overtime compensation for work already performed by the employee regardless of his or her immigration status.

The case also raises several other interesting points.

Undocumented Workers Win FLSA Case

In Lamonica v. Safe Hurricane Shutters, Inc., 2013 U.S. App. LEXIS 4599 (11th Cir. 2013), an undocumented worker with no social security number, who provided a false social security number to his employer, brought an action to recover unpaid overtime wages, along with seven of his co-workers.

The court found that the workers were entitled to recover overtime compensation, which had not been paid for the hours they had already worked.

Although the employer argued that the undocumented worker should be barred from recovering damages because he provided a false social security number, under the theory that one should not benefit from one’s own wrongdoing, the court rejected that argument.

The court concluded the worker had not engaged in the unlawful activity, which was the subject to the lawsuit, namely the failure to pay overtime compensation in accordance with the FLSA.

The case also highlights what proof is needed to succeed on your claim under the FLSA.

What You Need To Have a Successful Unpaid Overtime Claim

The FLSA places the burden of proving hours worked on the employee claiming compensation for work he performed. However, when an employer does not keep time records, as in this case, the burden on the employee is relaxes. As the court stated, in that circumstance:

An employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employee fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

The court also discussed at length the standard by which a supervisor of the employer may be held personally liable for the FLSA violation and expanded individual liability to individuals with control over an employer’s financial affairs.

Who Is Responsible For Paying My Unpaid Overtime?

Your supervisor, an officer of the company, and even a member of the Board of Directors may have to pay your unpaid overtime out of pocket.

In order to qualify as an employer, and therefore be individually liable for violations of the FLSA, a supervisor “must either be involved in the day-to-day operation or have some direct responsibility for the supervision of the employee.”

This was an important decision in terms of solidifying the rights of undocumented workers to pay for work performed. It serves as a warning to employers to take heed that the reach of the law is long when it comes to individual liability.

Group Action by Undocumented Workers Can Result In Successful Unpaid Overtime Claim

As noted above, the Lamonica case involved several employees who joined forces to bring a lawsuit.

This point may be of particular interest to an undocumented worker.

A claim against the employer under the FLSA can be brought by a single worker, by several workers who join the same lawsuit, or by one or more workers who bring suit do so on behalf of similarly situated workers.

This last “group action” is called a collective action and resembles a class action, but is another type of legal suit altogether. We mention this aspect of the case because an individual is often afraid to step forward and complain, or one worker may think his or her claim is just too small to justify the time and expense of finding and hiring a lawyer.

There is often strength in numbers. In fact, FLSA claims have long been recognized as particularly well suited for group action.

If you believe your co-workers are not being paid properly for the same reasons you are not being paid properly, let us know. We will gladly meet with you and others confidentially.

Whether you have questions about your own claim as a single claim or the interests of a group of your co-workers in mind, contact Wenzel Fenton Cabassa P.A. if you believe you have not been paid the overtime or wages you have earned.

We offer a free phone consultation and look forward to speaking with you.

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