Building a Corporate Wall

By Brian Thomas and Kitso Matlhape

We should update that old adage about death and taxes.   While both are still certain, we can add one more certainty to the list.  U.S. politics is predictable in its unpredictability.  We’ve heard calls for investigations and impeachment.  Legislators debate our collective response to the latest mass shooting.  Politicians stridently argue about building a wall. Then it’s wash, rinse and repeat.  Processing information was simpler when the news changed weekly.  Now, we see something new every minute. It’s easy to lose focus. But we should stay vigilant because some news, like a recent, little-known headline about undocumented workers’ rights, could have a far-reaching impact for employers.

On September 27, 2019, a New York federal magistrate weighed traditional employee law principles against U.S. immigration laws.  The case involved an undocumented employee, who worked as a delivery person for a flower shop.  She claimed that her employer violated the Fair Labor Standards Act and New York labor law because the flower shop failed to pay her overtime even though she worked up to 70 hours a week.  The employee and the flower shop initially agreed to settle the employee’s wage case for $25,000, but the flower shop tried to back out of the settlement when it learned that the employee provided a false Social Security card when she was hired. The employer argued that settling with the undocumented employee violated U.S. immigration law.

The magistrate disagreed and found that the employee’s immigration status is irrelevant under the FLSA and the settlement didn’t violate immigration laws. The magistrate found that any other result could promote the exploitation of undocumented employees.  In other words, employers would have an incentive to hire more undocumented workers if they can avoid paying them overtime or other wage benefits with impunity.

So why is this important?

It’s important because, unlike a lot of our political discourse, the intersection between employment law and immigration law is nuanced.  While undocumented is not synonymous with unprotected, there are limits on the protections undocumented workers can receive.  These laws are changing every day.  Smart employers won’t leave things to chance.  They’ll consult with their immigration and employment attorneys before making a rash decision.  Otherwise, they could face the predictable unpredictability of a jury’s decision.

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