§ 4.1 Effect of Legal Status on Rights of Workers Under Labor Protective Statutes

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 4.1 EFFECT OF LEGAL STATUS ON RIGHTS OF WORKERS UNDER LABOR PROTECTIVE STATUTES

Attorneys who represent noncitizens on claims arising out of their employment are often confronted with an argument that their clients' immigration status is relevant to their right to relief under labor protective statutes such as the Fair Labor Standards Act of 1938 (29 USC §§ 201-219), especially when there is reason to suspect that a worker may not have been authorized to work in the United States. These arguments take two forms: (1) the statute involved does not provide substantive protection for a worker who was not authorized to be present in the United States, and (2) the immigration status of the worker in some way limits or affects the relief available to the worker.

The courts have generally (with some exceptions in the Fourth Circuit) found that the key statutes protecting workers apply to all workers without regard to immigration status or work authorization. The relief available, however, is a more complicated question.

§ 4.1-1 Effect of Immigration Status on Whether the Substantive Protections of the Law Apply

§ 4.1-1(a) Fair Labor Standards Act

The leading case respecting the effect of a claimant's immigration status on the availability of the wage protections of the Fair Labor Standards Act of 1938 (FLSA) (29 USC §§ 201-219) is In re Reyes, 814 F2d 168, 170 (5th Cir 1987), cert den sub nom Griffin & Brand of McAllen, Inc. v. Reyes, 487 US 1235 (1988). In re Reyes preceded the Immigration Reform and Control Act of 1986 (IRCA) (Pub L 99-603, 100 Stat 3359), which first introduced a prohibition in federal law against employing noncitizens who are not authorized to work in the United States. In that case, the Fifth Circuit held that the protections of the FLSA are available to workers without regard to their immigration status. In re Reyes, 814 F2d at 170; accord Donovan v. Burgett Greenhouses, 759 F2d 1483, 1485 (10th Cir 1985); Lopez v. Rodriguez, 668 F2d 1376, 1377-78 (DC Cir 1981). This precedent continues to be followed post-IRCA. See Galdames v. N&D Inv. Corp., 432 F App'x 801, 804 (11th Cir 2011), cert den, 565 US 1199 (2012); Patel v. Quality Inn S., 846 F2d 700, 704 (11th Cir 1988), cert den, 489 US 1011 (1989); Hernandez v. Tadala'sNursery, Inc., 34 F Supp 3d 1229, 1237-38 (SD Fla 2019); Galaviz-Zamora v. Brady Farms, Inc., 230 FRD 499, 502 (WD Mich 2005); Contreras v. Corinthian Vigor Ins. Brokerage, 25 F Supp 2d 1053, 1058 (ND Cal 1998). The FLSA is also applied irrespective of whether the claimant is a permanent resident or in the United States on a temporary nonimmigrant visa. Castellanos-Contreras v. Decatur Hotels LLC, 622 F3d 393, 396-97 (5th Cir 2010) (FLSA applies to temporary workers admitted on H2-B visas).

§ 4.1-1(b) National Labor Relations Act

The National Labor Relations Act (NLRA) (29 USC §§ 151 - ¹69) protects workers' right to organize and has also been interpreted to apply to all working people in the United States without respect to their immigration status. Sure-Tan, Inc. v. NLRB, 467 US 883, 892-94, 104 S Ct 2803, 81 L Ed 2d 732 (1984) (see § 4.1-2(a)); Local 512, Warehouse & Office Workers' Union v. NLRB, 795 F2d 705, 716 (9th Cir 1986), abrogated on other grounds by Hoffman Plastic Compounds Inc., v. NLRB, 535 US 137, 122 S Ct 1275, 152 L Ed 2d 271 (2002); NLRB v. Apollo Tire Co., 604 F2d 1180, 1183 (9th Cir 1979). Although the Supreme Court in Hoffman restricted available remedies in light of IRCA (see § 4.1-2(b) to § 4.1-2(c)), the Hoffman decision did not disturb the basic holding of Sure-Tan that undocumented aliens are covered workers.

§ 4.1-1(c) Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 is set forth in 42 USC §§ 2000e-2000e-17. Courts have generally held that Title VII's prohibition of employment discrimination covers unauthorized noncitizens. EEOC v. Hacienda Hotel, 881 F2d 1504, 1517 (9th Cir 1989) (applying pre-IRCA law); Rios v. Enter. Ass'n Steamfitters Local Union 638 of U.A., 860 F2d 1168, 1172 (2d Cir 1988) (same). But see Egbuna v. Time-Life Libraries, 153 F3d 184, 187-88 (4th Cir 1998), cert den, 525 US 1142 (1999) (en banc) (per curiam) (temporarily unauthorized workers who were refused reinstatement after resignation had no claim under Title VII, implying undocumented workers may not be covered).

In U.S. EEOC v. Mar. Autowash, Inc., 820 F3d 662, 667-68 (4th Cir 2016), the court held that an Equal Employment Opportunity Commission (EEOC) subpoena addressed to alleged unlawful employment discrimination against an employee who was not authorized to work in the United States should nonetheless be enforced despite the holding in Egbuna. Discussion in the case leaves open the question whether Egbuna's holding is that unauthorized aliens are not covered by the act at all, or whether they are ineligible for certain remedies.

PRACTICE TIP: Notwithstanding Title VII's coverage of workers without regard to their immigration status, as a practical matter, in termination or refusal-to-hire cases, employers will have legitimate business reasons (compliance with the IRCA for example) for not hiring or terminating workers who are known by them not to be properly authorized to work, even though this has a disparate impact on a protected class of workers. It is potentially a different matter if the employer only suspects or believes without proof that the worker is not properly authorized to work.

§ 4.1-1(d) Migrant and Seasonal Agricultural Workers Protection Act

The Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), which is set forth at 29 USC §§ 1801-1872, protects migrant agricultural workers and applies to all workers, regardless of work authorization status. In re Reyes, 814 F2d 168, 170 (5th Cir 1987), cert den sub nom Griffin & Brand of McAllen, Inc. v. Reyes, 487 US 1235 (1988); cf. Montelongo v. Meese, 803 F2d 1341, 1352 & n 17 (5th Cir 1986), cert den, 481 US 1048 (1987) (under predecessor statute).

§ 4.1-1(e) Age Discrimination in Employment Act of 1967

Case law under the Age Discrimination in Employment Act of 1967 (ADEA) (29 USC §§ 621-634) is sparse and generally not favorable. The Fourth Circuit has held that a worker who is not work-authorized is not protected, since under Egbuna v. Time-Life Libraries, 153 F3d 184, 187 (4th Cir 1998), cert den, 525 US 1142 (1999) (en banc) (per curiam), for a worker to be "qualified" for a position, the worker must have been authorized for employment in the United States at the time in question. Reyes-Gaona v. N.C. Growers Ass'n, 250 F3d 861, 863 (4th Cir), cert den, 534 US 995 (2001).

NOTE: Reyes-Gaona was based on the holding in Egbuna. Discussion in U.S. EEOC v. Mar. Autowash, Inc., 820 F3d 662 (4th Cir 2016) leaves open the question whether Egbuna's holding is that unauthorized aliens are not covered by the act at all, or whether they are ineligible for certain remedies.

§ 4.1-1(f) Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is set forth at 42 USC §§ 12101-12213. In Lopez v. Superflex, Ltd., 2002 US Dist LEXIS 15538 at *7, 2002 WL 1941484 at *1 (SDNY Aug 21, 2002), the court held that it was not necessary to plead lawful status to state a claim under the ADA, expressing doubt that immigration status affected coverage.

§ 4.1-1(g) State Wage and Hour Law

There are no Oregon appellate decisions regarding the applicability of wage statutes such as ORS 652.150, ORS 652.200, or ORS 653.055 to workers who are not work-authorized. However, courts generally look to federal decisions under the FLSA to interpret Oregon wage law. Nw. Advancement v. State, 96 Or App 133, 136-37, 772 P2d 934, rev den, 308 Or 315 (1989), cert den, 495 US 932 (1990). Oregon trial courts have commonly and uniformly enforced Oregon wage statutes when the workers involved were undocumented.

§ 4.1-2 Effect of Immigration Status on Available Remedies

Assuming that a given labor-protective statute covers an undocumented worker or a nonimmigrant worker, the issue of how to shape appropriate remedies when the persons harmed by the violation were not working lawfully in the United States has long perplexed the courts. Two contrary policy considerations have been implicated.

On the one hand, if a class of workers can be exploited with no remedy and no consequence for the employer, protection for all workers and the policy of the labor-protective statute is substantially...