The November/December issue of the Nebraska lawyer has an interesting article written by Rachel Alexander regarding the rise of lawsuits and claims by undocumented workers against their employers.
As Ms. Alexander discusses, recently, a federal court in Louisiana decided that temporary nonagricultural guestworkers working under H-2B visas were employees that could sue under the FLSA for minimum wage violations. While this isn’t a surprising decision, it may be surprising to learn that U.S. citizens and legal immigrants aren’t the only employees who can sue under federal employment laws. Undocumented workers can too.
Many federal employment laws define “employee” broadly to cover any employee or applicant looking to sue for overtime and minimum wage violations, employee benefits issues, retaliation, and discrimination. Some courts have gone so far as to say “it is well established” that these federal laws protect citizens and aliens alike and “whether an alien in documented or undocumented is irrelevant.”
As such, it is important to treat all employees, citizen or not, alike because you never know when one might use the broadly worded employment laws to their advantage.