Spring 2006-09 Undocumented employees entitled to FLSA protection

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Number 63
Spring 2006

Undocumented employees entitled to FLSA protection

In the case of Zavala v. Wal-Mart, 393 F. Supp. 2d 295 (2006). the U.S. District Court for the District of New Jersey determined that undocumented employees are entitled to protection under the Fair Labor Standards Act.

Wages and hours

Several undocumented immigrants who worked as janitors in Wal-Mart stores (some employed by Wal-Mart and some by contractors) sued claiming that they were paid less than the minimum wage and were not paid for work performed in excess of the statutory maximum number of hours.

Supreme Court Doctrine

Wal-Mart alleged that undocumented workers are not entitled to FLSA protection, and that the "employer" was the contractor. Wal-Mart relied in the decision of the U. S. Supreme Court in Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). Therein the Supreme Court set aside a National Labor Relations Board order requiring the employer to compensate the employees for back pay for the hours that they would have, but had not worked, had they not been terminated for Union activity, since said award was deemed to be contrary to the Immigration Reform and Control Act of 1986.

District Court

The District Court distinguished Wal-Mart's case from Hoffman, stating that here the employees sought back pay for work that they had already performed. Said award, according to the court, would not undermine the Immigration Reform and Control Act. Further, the definition of "employer" includes "any person acting directly or indirectly in the interest of an employer in relation to an employee"; an "employee" is "any individual employed by an employer"; and to "employ" means "to suffer or permit to work." Thus, the District Court concluded, FLSA protection is not limited to U.S. citizens nor those legally employed, but also includes also "any individual."

Joint employer

Finally, the court expressed that Wal-Mart may be qualified as a "joint employer" with the contractors, for if the employers are entangled, the two employers are treated as one entity.


© 2006 Goldman Antonetti & Cordova, LLC