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Undocumented Workers are Entitled to Overtime Compensation

By: Santiago J. Padilla, Esq.

Employers of undocumented or illegal immigrants in Miami and South Florida should be aware that the Fair Labor Standards Act (FLSA) applies to undocumented workers as much as it does to legal permanent residents and citizens. This means that illegal aliens are entitled to be paid the federal minimum wage and to receive overtime compensation of one and one-half times their regular rate of pay.

Recent federal court decisions in South Florida have reinforced this principle. For example, in Galdames v. N & D Investment Corp., No. 08-20472-CIV, 2008 WL 4372889, at *4 (S.D.Fla. Sept. 24, 2008), the Court held that undocumented workers and illegal aliens may bring claims for unpaid wages, overtime compensation and liquidated damages. The Court's holding was largely based on the Eleventh Circuit Court of Appeal's decision in Patel v. Quality Inn South, 846, F.2d 700 (11th Cir. 1988) where the Court held that "undocumented workers are 'employees' within the meaning of the FLSA and that such workers can bring an action under the act for unpaid wages and liquidated damages."

Therefore, employers in areas like Miami and South Florida, where there is a high population of undocumented workers, must remember that the FLSA as well as other employment and labor laws, apply with equal force to undocumented workers. Indeed, the rationale for applying these laws to illegal aliens is, among other reasons, because to not enforce these laws with respect to undocumented workers, would merely encourage the hiring of more undocumented workers, which flies in the face of current immigration policy.

On July 24, 2009, the federal minimum wage will increase to $7.25 per hour for all employers. For restaurants that apply the "tip credit," the new direct minimum wage will go up to $4.19 per hour, with the "tip credit" remaining at $2.13 per hour.  In Florida, the minimum wage increased to $8.05 on January 1, 2015, with a minimum wage of at least $5.03 for tipped employees.

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If you have any questions regarding wages and hours or any other employment law matter, please contact Santiago J. Padilla at 1-800-483-7197.

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