Can illegal aliens sue under the FLSA?
January 25, 2010 by Christian SchappelPosted in: Employment law, FLSA, In this week's e-newsletter - benefits, Latest News & Views, Pay and benefits, Who won?
When a group of immigrant workers in Washington State sued their employer for FLSA violations, the company tried to get the lawsuit thrown out. Was it successful?
What happened
The company argued that the employees were “illegal aliens,” and therefore weren’t protected under the Fair Labor Standards Act (FLSA).
But the court ruled that didn’t matter. The FLSA is meant to protect all employees — regardless of immigration status — from abuse.
So the company lost its fight to get the case thrown out.
Do you think the court made the right decision? Let us know in the Comments Box below.
Tags: fair labor standards act, FLSA, illegal aliens, immigrant workers, immigrants, lawsuit, Washington State
January 25th, 2010 at 11:01 am
Lesson: Don’t hire illegals in the first place. Use E-Verify to check status before hiring anyone.
January 25th, 2010 at 3:32 pm
Art, from what i can see on the Social Security website, it is illegal for an employer to use e-verify to check a soc # before they’ve actually hired an employee; and then once the employee is hired, it’s illegal to terminate them based on the result of a negative verification. It’s a catch 22. Employers don’t have the right to protect themselves no matter what e-verify tells them.
January 25th, 2010 at 4:36 pm
Art and K, if there is a tentative non-confirmation on E-Verify then the employee has time to contest and get it straightened out with SSA or the employee can choose not to contest and they essentially terminate themselves that minute. If the employee does not fix the problem within the allotted time then yes you can terminate the employee.
January 25th, 2010 at 6:12 pm
If our Congress makes it Federal law for all employers to use E-verify on new employees and existing ones.
Then there is no issue and we free up 14-30 million NON AG jobs for Americans and LEGAL residents.
AZ is already using E-verify state wide for all employers.
January 25th, 2010 at 6:23 pm
[...] This post was mentioned on Twitter by HRMorning, W.A.Swan, Sandra Young, Lee Keller King, Stephanie R Thomas and others. Stephanie R Thomas said: RT @Matthew_Stiles: A short reminder- even illegal workers are afforded the minimum wage, overtime protections of the FLSA. http://3.ly/VJgJ [...]
January 26th, 2010 at 10:01 am
What about the I-9 form, does anyone use this? If the proper documentation is collected up front, more than likely they will have legal employment eligibility. E-Verify is to be used in conjunction with this to better protect employers. Why would the company in question hire them if they are illegal? Surely they would have known that they were.
January 27th, 2010 at 1:19 pm
Hernande USA…I completely agree with your comment on making it federal law to e-verify. I don’t know about other parts of the country… but my instinct tells me in my area, even our young teenagers picking strawberries or spinach in the summer has been thrown out the window in the last several years due to those jobs having been taken by illegal workers. To my knowledge alot of those summer work programs for kids don’t even exist anymore. Not to mention alot of regular agriculture jobs also. It’s scary.
January 27th, 2010 at 1:26 pm
thank you “K”
Funny you mention summer farm jobs for our American kids.
Only 4% of illegals actually work on the farm, the other 96% work in every industry you can imagine taking millions of jobs away from Americans.
January 27th, 2010 at 1:31 pm
Hmm…thanks for the statistics. I like to learn that kind of info. I guess I’m just, personally, concerned as to why my teenager is so lazy.
hehe
January 28th, 2010 at 2:29 pm
The company should be fined for having illegal aliens and than the poor working condition. The rest of the non usa citizens should have been deported at that time.
January 28th, 2010 at 2:46 pm
DOES THE WORD “ILLEGAL” MEAN ANYTHING TO ANYONE? IT’S ILLEGAL FOR THEM TO BE IN THE UNITED STATES AND IT’S ILLEGAL TO HIRE THEM. WHY SHOULD THE GOVERNMENT GET INVOLVED TO STRAIGHTEN OUT EVERYONES MISTAKES. IF YOU LOOK IN THE MIRROR IN THE MORNING AND KNOW YOU ARE IN THE WRONG YOU ARE THE ONLY ONE RESPONSIBLE TO CORRECT IT. EVERYONE SHOULD OWN UP TO THESE ISSUES THAT THEY CREATED BEFORE THEY BECOME BIGGER PROBLEMS. NOW THAT WERE IN A HUGE HOLE WITH ALL OF THIS ILLEGAL IMMIGRATION CRAP YOU WOULD THINK SOMEONE WITH A LITTLE COMMON SENSE WOULD REALIZE THAT IT’S TIME TO STOP DIGGING DEEPER AND START FILLING IN THE HOLE. I’VE HAD MY SAY.
January 28th, 2010 at 3:54 pm
I hate to say it but, it’s too late! The insanity of giving so many rights to illegals has gone past the point of no return. This country takes all of the rights away from the employer and gives rights to the non-taxpaying illegals in almost every case. It’s a sad state of affairs anymore. I don’t agree with mistreatment of any employees but when this country consistently sides with people who are here ILLEGALLY in 99% of the cases, we should wake up! Those statistics are correct. Especially in California they own property, buy cars without having a license or insurance and it’s OUR fault – not theirs. We employ special teachers so they don’t have to learn English. What’s wrong with this picture? California is so far in debt and Schwartzy says it’s not due to illegal immigration? Is he nuts or just stupid? I for one am sick of footing the bill. California is a lost cause but the whole country will feel it soon.
January 28th, 2010 at 4:09 pm
So a company hires illegal aliens AND treats them like crap by violating the FLSA? Sounds like a great place to work!
As far as E-Verify or any other background screening including I-9 verification — the minute we started verifying SSN’s with the SSA (over 10 years ago!) we saw a new trend… identity theft. It’s very difficult to prevent; all ID matches, SSN, DOB, and gender and name are all correct. How confident would you be basing decisions about someone’s identity on one small photo on their ID?
January 28th, 2010 at 4:25 pm
The only case the court should have considered was whether the company knew they were illegal and prosecute if they did. If they didn’t, then the “employees” should have just been deported, end of story. I’ll bet those people have not been deported, even though it is obvious that the authorities now know they are illegal and where they are. It seems that is the way our country works now. Decent law abiding companies and people pay through the nose for those that are lazy or illegal!! What happened to the America I used to know?
January 28th, 2010 at 4:39 pm
We are sending the wrong message to the illegals. We are encouraging them to bring more of their friends and relatives! If we would start treating them as THE LAW BREAKERS THAT THEY ARE then maybe we could discourage more from coming! Enforcing the law is NOT unconstitutional and we should round them all up, one at a time, whole families if necessary so that we don’t break up any ‘family units’….and GET THEM THE HECK OUT OF MY COUNTRY!
January 29th, 2010 at 10:58 am
On the surface, extending FLSA protection to illegals seems outrageous to me. My first instinct is to say no, you’re not covered and GET OUT.
On further reflection, what if the someone robs an illegal? Do we say, “Too bad, sorry ’bout your luck.” What if someone murders an illegal? What would be your response to that?
I’m not happy about our government extending privileges to illegals and I think this should be halted immediately. However, I think illegals do deserve protection under our laws. And if they deserve protection under one law, they deserve protection under all laws. (Even though I don’t like it that they are protected under FLSA).
January 29th, 2010 at 11:15 am
My response would be – They were obviously in the wrong place at the wrong time – (Key word: wrong PLACE) but you know the sad part is that our jails are packed with illegals who are doing exactly that to our U.S. citizens. More of them are the robbers and murderers than are victims! If they come here illegally why should they start obeying the law?
January 29th, 2010 at 11:24 am
You mixing Apples and oranges.
Someone being robbed, hurt, raped or killed… is not the same as someone doing something illegal and then claiming they weren’t treated fairly.
Using your logic its OK for a criminal to break into your house, then sue you because you didn’t have enough money in the house and the criminal hurt their hand while trying to pry your window open!
NO – we never reward criminals!
HR is the 1st line of defense against the hiring of illegals.
January 29th, 2010 at 11:31 am
Criminals may not be able to sue you for not having enough money to steal but they have sued, and won, for being hurt on their victims property. I remember one that sued a grocery chain when he got hurt trying to break in through the roof. He should not have been on their roof either but he won anyway.
I didn’t mean to say I liked it or agreed with it, only that it has happened.
January 29th, 2010 at 11:40 am
Hence the poor history of our Government and abuse of our laws that allow the rewarding of criminal behavior.
The best thing we can do is KEEP the illegals from getting hired in the 1st place and wont be able to sue anyone.
** On a side note the story of a criminals suing a story is done by a sadly U.S. Citizen and these are clearly not U.S Citizens. ** – But I’m sure in this climate and leadership……..that doesn’t seem to matter.
January 29th, 2010 at 12:02 pm
My company hired a green-card holder. My employer pays 100% of insurance including spouse and all dependents. This employee’s wife has no social security number, no green card number – in fact he admits that she is here illegally. She has a different last name and the insurance company says that it is illegal for me to ask to see a marriage certificate. Unbelievable! Next thing you know we will be paying for them to have their “anchor” baby.
January 29th, 2010 at 12:15 pm
Donna: That’s the kind of thing that makes my blood boil! This country would rather give privileges to illegals than to it’s own citizens. If that employee was a U.S. Citizen who had a same sex partner, would that partner be covered? I bet not.
And that sounds crazy, why would it be illegal to ask for proof of marriage? How can someone with no U.S. ID at all be covered just because he says they are married?
January 29th, 2010 at 12:31 pm
I KNOW!!! The insurance company had to assign this guy’s wife an ID number – but, on the other hand, if one of our U.S. employees doesn’t supply a SSN for one of their kids – they don’t get coverage until they DO supply it – no matter how sick they are! What the *@%*??
I was never a racist – no prejudices – but now… I resent everything about “those people” and it’s not their fault. It’s the Pelosi/Feinstein/Boxer bunch that supports all of this – Shame on them! Being a democrat, I am very ashamed of them! It is encouraging more to come and take advantage of us stupid tax-paying Americans.
January 29th, 2010 at 1:16 pm
Let’s not forget how these frivolous and ridiculous law suits come about. It’s not that these criminals are crafty enough to figure out these loop-holes on their own. We all have bills to pay. There’s not much honor or decency left in our attorney pool. They have an expensive education to pay off and they will do whatever they can to bring in the money. These are the same people who wrangle into courts as judges and worm their way into our legislature. The fact that criminals have more rights, freedoms than the honest law abiding citizen is only a symptom of the very real problem.
It’s just another example of the lack of personal responsibility. When we let our people get dumbed down (our poor education system) they become dependent on someone else to think for them. When we allow ignorant people to come here illegally, they are also dependent on someone else to tell them how to think. They can be manipulated and controlled by anyone who tells them what they want to hear. When was the last time you saw a commercial or public announcement promoting individual responsibility or the importance of education? The truth is that NO-ONE else will have the same consideration or concern for YOUR well-being than yourself. When you give that responsibility away to someone else, you’re giving your rights away.
The widespread ‘entitlement’ mentality is a direct result of growing ignorance and enabling of this behavior. The only recourse is a vote to ‘clean house’ and try to repair/rebuild what we have left. Otherwise, the rest of us will be the minority and the criminals will be making the decisions in the ballot box.
January 29th, 2010 at 1:18 pm
Ditto to Donna. They really do think we’re stupid.
January 29th, 2010 at 4:51 pm
Mean Mom: Amen Sister!
January 29th, 2010 at 5:03 pm
Mom is always right! =)
February 8th, 2010 at 10:10 am
The terms “illegals” or “aliens” are dehumanizing and offensive. They are not from another planet! Try undocumented worker or immigrent. It is less offensive!
February 8th, 2010 at 5:02 pm
Let him who is without sin cast the first stone
February 9th, 2010 at 5:10 pm
My use of the term “illegals” is just short for illegal immigrants and is not meant to be dehumanizing, it is just lazy language on my part.
February 9th, 2010 at 5:47 pm
I am proud to be a “legal” immigrant that did not steal anyone’s job, lived with my uncle so that we were never a burden to society and we were expected to learn the English language. That was many years ago when it was not so easy to get into the USA.
February 9th, 2010 at 5:49 pm
C.Garza – I don’t care if I offend them. Live with it.
February 11th, 2010 at 2:40 pm
C.Garza – Donna is right…you are what you are. If you are here illegally you are illegal. I am getting extremely tired of pc. Enough is enough!!! I may be wrong but with a name like Garza are you illegal?
Is that why it is dehumanizing to you?
February 15th, 2010 at 1:18 pm
First of all, true the legalities and catch 22 are all a case in this. BUT… I agree, it doesnt matter if they were illegal or not. they should be paid for the job. And no one is to blame but our government.
February 16th, 2010 at 10:32 pm
Reading the above post I’m appalled by the comments and wonder where people get there information.
Two wrongs don’t make a right however; if you’re working in this country you should be paid for the work you are performing at no less than minimum wage with all OT hours paid. If we allow employers to pay people lower than minimum or less than the equal pay for equal work we encourage them to hire illegal immigrants.
On the other hand illegal immigrants shouldn’t be employed and should be subject to our immigration laws, thus they should be deported if caught.
In defense of illegal immigrants, those who are employed are actually doing us a favor in that they are paying payroll taxes including FICA and not able to collect them because they can’t claim the benefits. On top of that most of them are very hard workers willing to handle the task that most of our citizens won’t touch.
It appears to me that too many of us are being influenced by talking heads that are just looking for ratings by screaming an hollering about the twisted facts they have concocted.
It’s time to get serious about our true issues and taken the emotions out of it and look at what best fo everyone involved.
February 17th, 2010 at 8:54 am
I have heard that New York City can’t possibly deport all the “undocumented workers” from their city. They say it would be the ruin of their economy. I’m not sure where this information came from, it may have been someone with a hidden agenda. But if you think about it, it makes only too much sense and could well be true.
Let me say this: I have no problem whatsoever with legal immigration into the US. With the exception of Native Americans this country is nothing but immigrants. My ancestors were immigrants. What I have a problem with is people coming into this country illegally. This society is made up of laws. Anyone wanting to join this society must obey the laws. If people are allowed to join with no regard for the law, society begins to break down.
February 20th, 2010 at 12:19 am
Learn from my mistake: Never hire an illegal alien. I am getting sued for overtime because I hired undocumented workers- relatives of current workers, in order to help them out. I paid them well (2x minimum wage) and at their request, I gave them as many hours as they wanted but with the understanding that I would not pay over-time. I didn’t need to because it was unskilled work and I could easily hire an endless stream of people to do these jobs. I didn’t make them work the hours and when work was slow, I kept them on anyway because I was trying to help them in their quest to become Americans. I continually lent them money for their families, their babies and then gave them the extra hours so they could repay the loans, interest free. I was a good guy but I know it was wrong. But what’s really wrong is that 3 months after I laid them off, because they could not find any other sucker to pay them as well as I did, they sued me. The law is designed to protect against ruthless employers who pay less than minimum wage and treat the illegals like slaves. That was not the situation in my case. I have no rights in this and they have ALL the rights of a US citizen. It was illegal to hire them and it is illegal for them to work or even be here but if you do help them out and hire them, they immediately have all the protections and benefits of the US worker. And you, the employer, are required to pay their attorney’s fees and supply all evidence that will prove their case. I will have a judgment against me in court that conceptually is ordering me to break the law again in paying them overtime wages and penalties for an illegal action on their part. Their lawyer is taking a 40% cut of any money I am ordered to pay them while I pay, mandated by law, his fees for dragging the affair out. They will not only receive the overtime I never in a million years would have paid them (or given them), they will automatically receive twice that amount in liquidated damages. it is truly criminal and all I can say is this: NEVER, EVER, HIRE OR HELP ANY ILLEGAL ALIEN- even to sweep your driveway. They have more rights than you do and attorneys know this and when they are broke and desparate, will bite the hand that fed them.
February 22nd, 2010 at 10:30 am
My heart goes out to you Alan! My ‘green-card’ holder brought all of his relatives here and admits that they are illegals – His brother will wash all of my windows, inside and out, for $35! His wife will clean my house for $45! DON’T DO IT PEOPLE! I’d rather pay 10 times that to be on the safe side. It makes me sick what they did to you – what our gov’t let them do to you. We are the only ones that can make them go home – so don’t hire them – for anything! No matter how nice you think they are being, you are cuttiong your own throat if you do hire them!
February 22nd, 2010 at 11:54 am
K, Art –
You are correct. It is illegal to discriminate against anyone using the e-verify system. Believe it or not, mistakes are made by our government agencies so we do need to keep an open mind and treat all persons with respect. Once a person comes up as a “non-confirmation” they have 8 business days to go to the social security administration to resolve the issue. The issue will resolve through the e-verify system. I have not had one do this yet. The next level if it does not resolve and the employee – who is allowed to work during this time – is to ask them if they would like to escalate to the DHS. They can choose to do this or terminate their employment at that time. If they choose to do this, they have 8 more days to resolve the issue. If they do not have the issue resolved at the end of that period, then we have the right to terminate their employment. My employer uses this system. I have no problems with it.
To others – I hear much negative commentary on this board regarding “illegals”. For HR persons, or persons interested in HR practices, please keep in mind that we are bound to not discriminate against the employees, and moreover assist employees in not being discriminated against by the company, and their practices. Also, while I do not advocate breaking the law, hiring persons who are not here legally to work, most people seeking a job are trying to better themselves, and while they can not work for my company, or truly a company in the US like this, it is not my right to thumb my nose down at them for trying to do so. Perhaps these types of situations will help them find ways to stay here and work legally.
I actually talked to a person who’s friend had been a “resident” in this country for over 40 years. He assumed he was a citizen. His family immigrated here when he was a toddler. He has spent over $20K to defend his right to live and work in this country. It was a mistake. So again, when someone comes up as a non-confirmation remember it truly could be an error.
February 22nd, 2010 at 12:10 pm
I’m extremely surprised and disgusted at the lack of compassion many of these comments show. As HR professionals we are repsponsible for protecting both the company and the employees from each other…so you would think that would require a clear head and an unbiased view. I agree that undocumented workers should not be hired in order to protect your company, but I am appalled at how easily the term ‘those people’ is tossed around. nomi was right to say that this entire country, with the exception of Native Americans, is made up of immigrants. When any ‘new group’ came to this country, they were ‘those people’. How soon we forget. I don’t know how many generations of your family has lived in this country, but many of the posts give the impression that they have forgotten what it was like for their relatives to be ‘those people’. ‘Those people’ are sons and daughters and fathers and mothers who are doing anything possible to allow their family to survive. I am in no way condoning the hiring of undocumented workers. This is the voice of a woman whose husband has been out of work for months…I would love to see my husband working a full 40 and able to provide for his family again. If our daughters were starving do you seriously think he would hesitate to cross a border to find work? It’s very easy to want to protect what ‘we’ think it ‘ours’, but as soon as someone else has something we want, we don’t hesitate to take it. Many of us are very blessed and fortunate to have been born here, but that also makes us very short-sighted when it comes understanding why someone would risk their life to come here and do a job most of us would turn our nose up at. I’m sure we all have our own perspectives when it comes to this issue…I’m just asking you to consider the person you are berating and ask yourself what measures you would take to feed your child.
February 22nd, 2010 at 1:17 pm
Its very evident the NOVHR and MAC are open border sympathizers
1. illegals are not Undocumented Workers… They are illegal aliens and by LAW are NOT allowed to “work” in the United States of America…and as HR people it is honor to up hold those laws and protect our fellow citizens and to protect our Companies from greed and the DHS.
2. Instead of pulling on Heart strings for the illegals..I ask you where is your compassion for your fellow Americans who are trying to make ends meet and support their own hungry children and make a better life for them selves in our own Country and not someone else’s?
3. Keep the illegals out out U.S jobs and the illegals will leave on their own and back to their home countries working jobs they left behind.
February 22nd, 2010 at 1:51 pm
hmm…which part of my post did you not read? Maybe the part where I said that I do not support hiring undocumented workers? And maybe you missed the part where I mentioned that my husband is one of those ‘fellow Americans who are trying to make ends meet and support their own hungry children and make a better life for themselves…’ ? My comment came from my surprise and disgust at the way my colleagues chose to discuss this issue.
February 22nd, 2010 at 2:05 pm
“Those people’ have come to use up your taxes, NOVAHR. They have come for your husband’s job and to take food off of your table. You can sympathize but you’re going to get burned. They have no right to be here. I was not born here either but I played by the rules to earn the right to be here. They are criminals and they are looking for the easy way. Do not mistake them for people worthy of sympathy.
February 22nd, 2010 at 2:22 pm
The problem NOVHR
Is you confuse the term “immigrants” with the term “illegal”, they are NOT the same thing and should be inter changed with each other.
An “immigrant” is some like Donna who came here legally and played by the rules and should be rewarded for doing so.
An “illegal” is a cheat and criminal who believes America owe’s them and has no problem stealing or playing the RACE/sympathy card to get what they want.
Criminal behavior should NEVER be rewarded…so, please do not be an enabler of the illegals.
February 22nd, 2010 at 3:24 pm
NOVAHR, I agree with you. I would also say that the people who knowingly hire illegals should be classified as criminals and suffer the consequences of their actions to the full extent of the law including jail terms.
February 23rd, 2010 at 11:37 am
Now that I have thought about this some more, I don’ t believe illegal workers should be protected by FLSA. No criminal should have the opportunity to gain by their illegal activities. (And they are criminals). The employer should face consequences and the workers should be deported.
Alan, I feel for you and it seems you were trying to help but unfortunately you can’t trust anyone anymore. Too many people don’t have honor nowadays. They have the mentality that they are victims and they are only out for number one. I have had to learn the hard way that people will stab you in the back in a heartbeat. I have to fight myself to remain objective and not try to help all of my employees. I have had promises broken, loans never repaid, and repeat bad behavior from rehires. Now I don’t rehire, I don’t loan money unless I consider it a gift and I only give the benefit of the doubt to people one time.
February 23rd, 2010 at 12:28 pm
Unfortunately, nomi, that’s the world we live in now. If our government would enforce the immigration laws we wouldn’t have to deal with this mess. If I hear of any employer hiring illegals I can’t wait to report them. The only reason they would hire them is because of greed and that is also the only reason that the illegals are here in the first place. Sure this is a better life and it is accessible legally – but we are attracting the lazy, the corrupt and the greedy – and lilabe, don’t feed me this crap that they pay into FICA and medicare and that they don’t benefit from those funds because they are depleating them at record speed – not to mention the extra burden that they have put on our school system, special teachers, breakfast and lunch programs, the free medical programs, legal services – the list goes on forever…This is where your taxes are going along with your retirement money! I can’t afford to be unbiased because this is personal!They are taking food out of the mouths of my children and grandchildren and so many people feel that we have to be politically correct and protect these criminals. Well, it makes me sick.
February 23rd, 2010 at 1:19 pm
Donna, I completely agree with you. I don’t think people are noticing all the different areas of our economy and environment that this problem is affecting. It is almost incomprehensable, which is I think part of the reason the government is having such a hard time controlling it. They don’t know where to start. Well, PLEASE, start somewhere. This is out of control. My ‘new to the job market’ daughter can’t even get a job at a fast food restaurant because they’ve inundated that job market now, too. My family works heavily in the education sector and it is disgusting the extra cost involved with translation and, as you say the meal programs, as well. Even getting the children of these families back and forth to school… I’ve even known of daily trips from out of district (all by themselves on a school bus) when they are in special programs etc. Unbelievable. And especially when I just heard a story of a 4th grade class in the same district that couldn’t afford a school bus to take the class on a field trip about 2 miles out of town! It’s time that all branches of the government (schools included) start using a much stronger system of verification of residency. These programs should simply not be available to illegal immigrants until they are legal.
February 23rd, 2010 at 2:04 pm
I know where to start! ONE AT A TIME – ALL DAY LONG! The problem is getting the government to start at all! Maybe if they can’t work they will go back to where they came from but we must be strong – DO NOT HIRE ILLEGALS! Even if it’s to clean your driveway – insist on seeing their social security card. Only if every American did this they might leave. It would be too much to ask to get someone from the INS to co-mingle with the guys hanging outside of the Home Depot and Lowe’s looking for day laborer work…It’s so easy to find them – they’re everywhere – but no-one does anything about them! It’s appalling and disrespectful to us taxpaying citizens of the U.S. They thumb their noses at us stupid Americans and it really fries me when some of you out there want to protect them as though illegals are doing me some sort of favor. Ignorance! Big corporations want to protect illegals because they will work for minimum wage and no benefits so they lobby Washington not to enforce immigration laws. So, who is paying for their benefits? YOU are! California is crawling with illegals and I’m afraid it’s a lost cause – the State of California is bankrupt. Even the billboards cater mainly to non-English speaking people. The San joaquin Valley is beginning to look like Tijuana! Take a trip there and get a glimpse of what your neighborhood will soon look like! It may be too late for Mexi-California but it’s not too late for ‘most’ of the rest of the country.
February 23rd, 2010 at 4:13 pm
Do any of you actually work with employees or have any experience with immigration laws and the new hire process? The workers we bring on board do have documentation. It is illegal to question the documents that are given to us because we are not document experts. My company uses e-verify to do the job for us. So Hern, you can call me an open border sympathizer, but I’m actually not in favor of breaking the law, any employment law. Employers who will hire and underpay illegal workers will also discriminate in other areas. The employer is the problem, and their practices, not the employee who is just seeking to earn an income like the rest of us.
February 23rd, 2010 at 4:25 pm
Hernande -
Read your comments again, I like the part where you say that criminal behavior should never be rewarded. So are you saying that you shouldn’t earn a paycheck, meaning you personally, because of your illegal hiring practices? A paycheck is a reward for a job welldone. An HR person upholds policies and processes that support the EEO. What do you think?
Melissa
“HernandeUSA Says:
February 22nd, 2010 at 2:22 pm
The problem NOVHR
Is you confuse the term “immigrants” with the term “illegal”, they are NOT the same thing and should be inter changed with each other.
An “immigrant” is some like Donna who came here legally and played by the rules and should be rewarded for doing so.
An “illegal” is a cheat and criminal who believes America owe’s them and has no problem stealing or playing the RACE/sympathy card to get what they want.
Criminal behavior should NEVER be rewarded…so, please do not be an enabler of the illegals.”
February 23rd, 2010 at 4:41 pm
So MAC, you say “the employer is the problem, not the employee who is just seeking to earn an income like the rest of us”. You make the “employee” sound like an innocent victim! There is nothing innocent about being here illegally! These people are criminals and know how to manipulate the system to get food stamps, WIC, medical care, and the list goes on and on. It is true that except for the Native Americans, we are all immigrants in a manner of speaking. The difference is that my ancestors came here and followed the proper procedures to become an American LEGALLY and therefore, I have the rights of an American, illegals do NOT!!! I can empathize with their situations, but I will not tolerate them breaking the law. If it’s okay for them to break the law, then what would be wrong with me cheating on my taxes or my mother trying to collect double social security? Is that okay too, because we are having trouble making ends meet? Breaking the law is not justifiable because you need something. That creates caos and that is where we are headed.
February 23rd, 2010 at 8:55 pm
I made a terrible mistake and I am paying for it. If the government wanted to fine me- OK. I broke the rules but I didn’t do anything bad- promise. But I’ll take my lumps. The really unfortunate part is that my partners in crime, the people I tried to help, and their attorney are the benefactors.
If I were a parasitic attorney, I’d gather up all the undocumented workers who hang out in front of Home Depot and tell them this:
“Find someone you can convince to hire you for anything- $3- $5/hr -anything. Tell them you have a family and all you want to do is earn some money. Play on his sense of justice. If they are nice guys and pay you more than minimum wage- all the better. Be really cheerful and convince them to give you a lot of hours because you are working really hard to establish your family here but and tell them you don’t care or expect overtime. In fact, convince them not to hire anyone else- you can do the work instead. If they have a heart, they’ll go for it. These are the chumps that feed stray cats too.
Then later we are going to sue that guy for the overtime we say he owes you, claim that he never gave you lunch breaks or rest breaks (a paid hour a day for as long as you worked) , fine him a ton of money because he did not give you a paystub which would have been illegal for him to forge anyway, get you a months fee wages and guess what?- you are going to get all this plus TIMES TWO- it’s the law! And- you don’t have to pay me a thing upfront. He is required by law to pay my bill so I plan on dragging this out so that he will will pay you anything you ask for because it’s cheaper than having me racking up a bill. it’s all in the law and I have him by the throat. And don’t worry about him having you deported- that’s against the law and if he does, it’s really your lucky day. You can sit back home and he will have to pay you back-wages from the day you were deported until we finally settle the case- TIMES TWO at least again. But if I ‘m going to do this, I gotta take a 40% of whatever I get from this guy. But, I’ll pay you a finders fee for all your friends that come to me with the name of the employer that hired them and we’ll do the same thing to them. It doesn’t matter if they are a nice guy or if they helped your family and gave you money. It’s the law and the law doesn’t care and will back you up. Welcome to America.”
This is really what is going on. The attorney that is suing me currently has dozens of identical cases and he sues in the US District court system- which is expensive and allows him to also sue me under California laws in the same suit and take fees and fees under both jurisdictions. He doesn’t even have the clients names correct and half the stuff in the suit is not related to us but leftover from the last case he had on his wordprocessor. He doesn’t care and neither does the court. it has cost me $20k in just my own attorney’s fees and he will not settle until he racks up more fees that he can leverage me with. This is our legal system.
Now can anyone really say this is what the law intended?
February 24th, 2010 at 9:37 am
Alan,
Hiring an undocumented worker is not something that I support. I’m glad you learned your lesson this. This generally is not the way a company hires workers. You advertise, you have an application process, an applicant flow system, self identification form, and you look at all candidates. I have never worked for a company who hires from the home depot. I believe I would resign.
I’m also not for parasitic companies who prey off the weaknesses of the poor, or weak. A company who will act unethically, by hiring ANY worker (legal or illegal) at a rate below minimum wage is unethical in many other employment practices. That’s all I’m saying Cindy. You can have a beef with all the people that come into the country illegally but its a separate issue. You sound like a bigot. I’ve stated, I’m not for hiring illegal workers. I’m stating, that as an HR person, as an employer, what I CAN do is fill out my I-9’s, take the documents that they give me, use tools like e-verify, or Image and that is it. It is illegal for me to do anything else. It is also discrimination. That also costs your tons of money in fines. So think what you will, but this dialog is supposed to educate and get us to think so that we can improve the ways that we do things in BUSINESS not to solve all of the social problems that exist in the world.
I’m curious as to who posting actually holds an HR position. I ask this because many of you are so vindictive. How could you hire staff, and remain unbiased and help your companies?
February 24th, 2010 at 9:42 am
Bottom Line: A company is obligated to follow ALL US employment laws. If they deviate from them, even if an employee is breaking a law, then they are still accountable for doing the right thing. If the employee breaks a law, is i.e. illegal, then that will catch up with them too but we have to hold to our processes so that our companies are indemnified.
February 24th, 2010 at 11:08 am
Alan and I have been burned and once you get burned it’s a little tough to be objective. The U.S. laws have created the opposite affect that they were designed for and are not achieving the goals for which they were intended. I was never a bigot or a racist. I thought that only ignorant people were racists but I have never felt such resentment in my life! Mac, I’ll bet you don’t live in California. It’s tough to keep from being vindictive, believe me! Some of “those people” really do want to get one over on you and you have to stay one step ahead of them. I warn you to be careful because it WILL cost you your job and maybe your business. I guess I am biased, cautiously, and yes, I admit to believing in racial profiling. This is a different world we live in but no one can dictate to me how I should think or feel.
February 24th, 2010 at 2:08 pm
Donna,
No I don’t live in CA. I live in VA. VA laws mirror the federal laws much more closely. CA favors the employee heavily. Their state laws supercede the federal laws more times than not. So, I also would need to review the CA laws in order to work in your state. So since CA is extremely employee friendly, vindictiveness will do nothing but get you burned. So my suggestion is that you understand that while you may have some hostilities to what are social injustices, that for yourself and your business you take a mid-line approach, if not employee friendly approach. No, it’s not okay to work illegally in the United States. It’s tacky to pick up employees at the 7-11 or Home Depot as a recruiting strategy. It’s also not okay to ask someone for their “green card”, or “if they are an illegal”. Why put yourself in a compromising position? Why not take the higher road? They are here illegally but your comments and some of the others seem to have 1960’s roots. I’m sorry but I’ve had enough of that type of ignorance. So My comments in past posts are meant to address those applicants who come in and fill out an application at your business. Those other “businesses” who hire illegally – I don’t consider a business. When someone comes into fill out an application, you need to treat everyone the same. Do you not agree? My comments are for you to take a step back to protect yourself and your business OR you can say that “they” have also taken something else away from you when actually you (and me) are responsible for your actions. If you hired someone illegally and you got fined – you did that. If someone fails to get a work authorization then they did that to themselves.
February 25th, 2010 at 10:35 am
Like MAC, I am also in VA. I have never worked in California and don’t know anything about your laws there. I work 30 miles from DC and we have our share of people waiting outside 7-11 hoping for work. I would never hire someone who could not produce work documentation. The HR manager before me actually had someone present a Work Authorization card that stated they were eligible to work here “forever”. Yeah, we’re really going to fall for that! Around DC we have immigrants, new citizens and undocumented people from so many countries that it would make your head spin. I personally work with new citizens from Romania, Afganistan, Vietnam and El Salvador. I know how hard they worked to pass the test and how tough it was to wait through the entire process. I’m extremely proud to call them friends as well as co-workers. Donna, I absolutely respect the long process that you and your family went through to become citizens. If all businesses would respect the law and not hire workers who are here illegally, then the system would work. So I echo everyone before me who said that it starts with the businesses and their hiring. Alan, I’m sorry you had to go through what you did, especially with a greedy lawyer involved.
February 26th, 2010 at 6:37 pm
Illegal and rights. When did the employer know the individuals were illegal? If the employer knew the individuals were illegal when they hired them, then the employer deserves what they get, and more. Employers need to take every step known to stop this nonsense and not encourage illegal immigration. If someone is illegal when they are hired, should they be called an employee? Heck no. There are slimy lawyers that will try to make a buck on anything. I still can’t comprehend a lawsuit from a slimy lawyer for someone who is doing something illegal in the first place. Not a bad idea for the lawyer to be deported along with their client.
March 9th, 2010 at 2:09 pm
FLSA protects workers. It does not define which workers. If the company had a significant number of illegal aliens working, the company was aware of it. If they were treating their workers in a manner prohibited by FLSA, they knew it.
The company should be punished on both counts… first for hiring illegals, then for violation of FLSA. They should also receive a hefty fine for having the gall to do it.
To do otherwise would encourage more companies to break both regulations. It would breed the notion that it is okay to hire an illegal and pay them less than proscribed by law and that is what got us into the whole mess to begin with – a few cheap, unethical buisiness owners/managers looking to cut costs and pad the books to increase their profit and/or their performance bonuses. There is such a thing as white collar crime and these folks should spend a few months in jail to where they would be treated better than they treat the workers whose mistreatment paid for the miscreants’ Mercedes and Lexus SUV’s.