Employers violate the federal Immigration Reform and Control Act if they hire undocumented workers with actual or constructive knowledge of the employee’s legal inability to work in the United States. That Act exposes the employer who violates the law’s requirements to significant fines and penalties. It is important to know, however, that an employer may not discriminate against workers based upon their immigration status. So employers who do hire undocumented employees must nevertheless pay those employees all wages to which they are entitled under the law, including overtime pay.
Recently, the Federal Fifth Circuit Court of Appeals emphasized this fact when it held that an undocumented immigrant, who used a fake name and counterfeit Social Security card to obtain employment, could nevertheless bring a lawsuit under the federal Fair Labor Standards Act to recover overtime wages (at the rate of time and one-half) against his former employer. The Court of Appeals reversed a lower court ruling and held it was improper for that lower court to have dismissed the former employee’s lawsuit based on the employee’s use of a false identity and fake Social Security number.
It is clear from this Court decision, and others like it, that the main risk of hiring undocumented care providers is on the employing family, and not the undocumented caregiver. Consequently, families employing in-home help need to be very careful in verifying their prospective nanny has the legal ability to work in the US. Moreover, regardless of your employee’s immigration status, families must comply with all employment laws and be sure to pay their employees “by the rules”. It’s just not worth the risk.