An undocumented worker working in a warehouse.

Wage Protections for Undocumented Workers

By Douglas Lipsky

Undocumented workers in New York face unique workplace challenges that documented laborers do not experience, not the least of which is being taken advantage of by employers that fail to pay the minimum wage or overtime pay. Nonetheless, undocumented workers are entitled to the same legal protections as documented individuals under state and federal labor law. If your employer has treated you unfairly based on your immigration status, it takes a highly skilled employment lawyer to enforce your rights.

Undocumented Workers Under the Fair Labor Standards Act

The federal Fair Labor Standards Act (FLSA) is designed to protect employees against wage theft. The FLSA establishes a federal minimum wage and also guarantees overtime pay in certain industries:

  • Minimum wage — The FLSA sets the federal minimum wage of $7.25 per hour; the minimum wage throughout New York State is higher, however. Employees in New York City currently must be paid $15 per hour, which will be the statewide minimum wage by Dec. 31, 2020.


  • Overtime pay — All employees are entitled to overtime pay at the rate of one-and-one-half times their hourly rate for all hours worked over 40 hours per week.

The law applies to U.S. workers, permanent residents and immigrants with work visas, and the courts have consistently affirmed wage protections for undocumented workers under both the FLSA and New York Labor Law. Despite the fact that the federal Immigration Reform and Control Act makes it illegal for employers to hire undocumented workers, the law does not exclude undocumented workers from protection under wage and hour laws.

Although the U.S. Supreme Court had held that federal protections do not guarantee pay for time an undocumented worker would have worked had he not been terminated (Hoffman Plastics Compounds v. National Labor Relations Board), the FLSA and New York Labor Law cover hours that have actually been worked. 

This means that if your employer fails to pay you the minimum wage or overtime, you have a right to file a wage and hour claim to recover back pay owed to you. Courts in New York have ruled that immigration status of a plaintiff-worker is irrelevant under the FLSA, reasoning that such a policy ensures that employers do not take advantage of immigration law violations by knowingly hiring undocumented workers. 

The Takeaway

In addition to wage protections, undocumented workers are also protected against discrimination and harassment. In particular, employers are prohibited from retaliating against undocumented workers who complain about wages. This means that you cannot be fired or discriminated against in any way for filing a wage and hour claim. If your claim is successful, you may be awarded back pay, liquidated damages (of up to two-times the amount of wages owed) as well as attorneys’ fees and costs. If you are an undocumented worker and believe your employer has engaged in wage theft, contact an experienced employment law attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.