When Undocumented Workers Seek Remedies Under the FLSA for Tip Pool Violations, Back Wages and Beyond: What Happens?

Our New York wage and hour law firm has helped restaurant workers obtain many fair and generous settlements in high profile cases.

But each case has its own nuances.

In a recent case, we represented plaintiffs who sued an East Asian restaurant for violating the Fair Labor Standards Act (FLSA); they sought a back pay award pursuant to the FLSA. The defendants tried to reveal the plaintiffs’ immigration statuses, in an attempt to stop them from recovering damages. That legal tactic makes some sense, even if it’s cold hearted.

Here’s how the defense’s strategy played out:

• The Magistrate Judge issued an order stating that the plaintiffs did not have to produce their passports, and the Judge denied the defendant’s request to reopen discovery and investigate the immigration statuses;
• The United States District Court for the Southern District of New York objected to elements of the Judge’s order on nuanced legal grounds. Nevertheless…
• The District Judge denied the defendant’s motion for partial summary judgment but granted that the plaintiffs needed to produce their passports for non-immigration related purposes only.
• A Circuit Court judge then wrote: “to assert a defense… on the grounds of the employee’s immigration status” [would encourage employers to violate immigration laws, because they] “would effectively be immunized from [their] duty under the statute to pay earned wages.”

In simpler language: it isn’t really fair to deny an immigrant worker fair treatment or fair pay just because of his or her immigration status.

So what are the implications for you, if you’ve been struggling with unfair treatment at your workplace?

1. The case highlights the lengths to which defendants will go to protect their pocketbooks.

When threatened financially, companies can resort to unexpected, unwelcome tactics.

2. The case illustrates how subtle the law can be.

In this case, we prevailed. But that was not a guaranteed outcome. Even cases that seem straightforward can prove to be anything but.

3. Plaintiffs can prevail despite challenging and unfair circumstances.

The system, in other words, can be made to work.

For more help understanding your rights and potential remedies, according to the Fair Labor Standards Act (FLSA) or New York Labor Laws (NYLL), get in touch with the thorough, experienced team here at Joseph & Kirschenbaum for a free consultation. Email us at info@jhllp.com, or call (212) 688-5640 to set up your consultation.