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Are Undocumented Workers Entitled To Overtime?

The federal Fair Labor Standards Act (FLSA) is meant to protect all workers.

These wage and hour laws protect the vast majority of employees, and that includes undocumented workers. Whether or not you have proper documentation to work in the United States, you are entitled to overtime wages and a fair minimum wage.

Just like any other employee, the only reason an unauthorized worker is not entitled to the FLSA’s wage and hour protections is because they fall into one of the law’s “exemptions.”

Yes, Undocumented Workers Have A Right To Overtime

You have every right to be treated fairly, no matter your documentation status. If an employer allows you to work, benefits from your labor, you’re entitled to all the labor protections extended to workers with proper documentation.

But undocumented workers are more likely to have their rights violated than authorized ones. Undocumented women are the most likely to be victims of wage theft.

You can fight back.

In numerous decisions, US courts have overwhelmingly supported the labor rights of undocumented workers.

Can An Undocumented Worker Sue For Unpaid Wages?

Yes.

An undocumented worker’s right to overtime and the minimum wage was conclusively decided in a 2013 court case called Lucas v. Jerusalem Cafe, LLC. But the case also decided that undocumented workers have another right: the right to sue their employers for unpaid wages under the FLSA.

Elmer Lucas and five other undocumented workers filed a lawsuit against their former employer, the Jerusalem Cafe. The workers said they routinely worked more than 70 hours a week, but never got paid overtime and usually made less than minimum wage. These are both wage and hour violations.

A jury agreed, and awarded the workers $440,916.71 in unpaid wages, liquidated damages, legal fees and expenses.

The cafe’s owner, Farid Azzeh, wanted a new trial, arguing that because they lacked proper work documentation, the former employees were “prohibited by law from receiving any wages” and had no “standing to sue for backpay under the” Fair Labor Standards Act. The court rejected both of his arguments.

Does My Documentation Status Matter?

No.

In Lucas v. Jerusalem Cafe, the court decided before the case began that the workers’ documentation status was irrelevant and shouldn’t be mentioned during the trial.

This is standard procedure. If you choose to sue your employer over wage and hour violations, it’s very unlikely that your documentation status would ever come into the equation at all.

Many employers threaten undocumented workers with deportation. That’s illegal under federal law. So is actually reporting someone’s immigration or citizenship status because they intend to make a complaint about unpaid wages.

What Am I Entitled To?

Under federal law, you are entitled to a minimum hourly wage of $7.25 and overtime at time-and-a-half for all hours worked over 40 in a week.

But you may be entitled to more. Many states have their own minimum wages and rules for overtime, and they may apply to you. To learn if your state has a higher minimum wage, click here.

6 State Wage & Hour Laws: Do You Deserve More?

60% of the unauthorized people in the US live in just 6 states, according to the Pew Research Center: Texas, New York, California, Florida, New Jersey and Illinois.

We’ll cover the specific wage and hour laws that hold in those states. To learn more about other state laws, click here.

Nevada

In Nevada, 10% of the state’s labor force is made up of undocumented workers.

  • Minimum wage: $8.25 per hour
  • Overtime: Time-and-a-half for all hours worked over 40 in a week.

If you make less than $12.38 per hour (one-and-one-half times the state minimum wage), you’re entitled to overtime for any hours worked over 8 in a day.

California

9% of California’s work force is undocumented.

  • Minimum wage: $10.00 per hour for businesses with 25 employees or fewer; $10.50 per hour for businesses with 26 employees or more. Note, however, that many cities and counties in California have set their own minimum wage regulations, which may be even higher than the state minimum wage. To learn more, click here.
  • Overtime: Time-and-a-half for all hours worked over 40 in a week and all hours worked over 8 in a day.

If you work seven straight days, you’re entitled to time-and-a-half for the first 8 hours on the seventh day. You’re entitled to double time for any hours worked over those first 8.

Texas

In Texas, 9% of jobs are filled by unauthorized people.

  • Minimum wage: $7.25 per hour
  • Overtime: Time-and-a-half for any hours worked over 40 in one workweek.
New Jersey

8% of New Jersey’s labor force is made up of undocumented workers.

  • Minimum wage: $8.44 per hour
  • Overtime: Time-and-a-half for all hours worked beyond 40 in a week.
New York

In New York, 10% of the state’s work force is undocumented.

  • Minimum wage: Read our 2017 guide to New York’s more than 14 different minimum wages here.
  • Overtime: Time-and-a-half for any hours worked more than 40 in a workweek.
Illinois

4.4% of Illinois’ labor force is made up of undocumented workers.

  • Minimum wage: $8.25 per hour
  • Overtime: Time-and-a-half for all hours worked over 40 in a week.

Chicago’s minimum wage is even higher: $10 per hour. It will rise to $10.50 an hour on July 1, 2016.

Contact Our Lawyers

Now that you know how much you should be making, think about much you are making.

Undocumented workers make a valuable, necessary and welcome contribution to communities across the country. They keep entire industries like agriculture running. You are a valuable member of this society. It’s time you were treated with the dignity you deserve.

Wage Advocates
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Thank you! I worked a long time without proper overtime pay and Wage Advocates helped me get compensation."
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