South Carolina workers may be interested in a recent ruling in a New York lawsuit involving the Fair Labor Standards Act and claimed wage and hour violations. In the case, the employer sought copies of the plaintiffs' immigration documents, tax returns and the name of their current employer in order to defend against the case.
The court ruled that the employer could not have the documents. In its ruling, the court indicated that the documents were not relevant to the plaintiffs' claims and would only serve to intimidate them. The judge then pointed out that the FLSA and the wage and hour laws apply to all workers, regardless of their immigration status.
Workers must be paid at least the applicable minimum wage for the work they do, even if they are undocumented. If they work overtime, they should be paid the amount called for under the wage and hour laws. It is up to employers to make certain that they are employing people who are legally able to work, such as by having them complete I-9 forms and getting copies of their work authorization documents.
It is possible for a non-U.S. resident to be allowed to work for a specific employer by getting an employment visa. Such a visa will provide protection for both the worker as well as the employer. People who have a job opportunity available and need an employment visa may want to speak with an immigration law attorney about the types of documents both they and the employer need to gather. The attorney may then help them complete and submit their petition for the employment visa. If it is denied, the attorney might then help with requesting a reconsideration of the denial, supplying any additional information that is needed.