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News | Jun 12, 2009

Immigration Status of Wage and Hour Plaintiffs Frequently Held to be Not Discoverable

Often, employers attempt to intimidate current and former employees asserting their rights under state and federal wage and hour law by attempting make issue of the employee’s immigration status. However, Courts have consistantly found one’s immigration status to be irrelevant and issued protective orders precluding discovery of one’s immigration status.  The definition of “employee” under the Fair Labor Standards Act (“FLSA”)  includes, with a few exceptions , “any individual employed by an employer.”  See 29 U.S.C. §203(e)(1) (emphasis supplied). Thus, courts have consistently held that the protections of the FLSA apply to all individuals who fulfill the definition of “employee” regardless of their immigration status. See, e.g., In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987), cert. denied, 487 U.S. 1235 (1988) (“It is well established that the protections of the Fair Labor Standards Act are applicable to citizens and aliens alike and whether the alien is documented or undocumented is irrelevant.  An employee is any individual employed by an employer.’”); Montoya v. S.C.C.P. Painting Contrs., Inc., 530 F. Supp. 2d 746, 750 (D. Md. 2008) (“the protections of the Fair Labor Standards Act are available to citizens and aliens alike, regardless of documented or undocumented status.”); Flores v. Albertsons, Inc., 2002 U.S. Dist. LEXIS 6171, *17 (C.D. Cal. Apr. 9, 2002) (“Federal courts are clear that the protections of the FLSA are available to citizens and undocumented workers alike.”).

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