Workplace

Court says undocumented workers have a right to sue for legal wages

Updated: 2013-08-01T22:11:08Z

By DIANE STAFFORD

The Kansas City Star

Court to employers: If you hire undocumented workers, you have to pay them legal wages. You can’t argue that because they were illegal workers, they don’t have labor law rights.

In a case that pit U.S. labor law against immigration law, a panel of federal appellate judges has ruled that six undocumented workers are owed about $450,000 in back pay and penalties for uncompensated work at a Kansas City restaurant — the popular Jerusalem Cafe in Westport.

The 8th Circuit U.S. Court of Appeals said this week that federal labor law trumped federal immigration law in this instance.

The court ruled that a former owner and former manager of Jerusalem Cafe could not argue that the workers were in the United States illegally and therefore lacked standing to sue for unpaid wages.

That argument, the appellate panel said, is akin to saying that Al Capone couldn’t have been prosecuted for tax evasion because his earnings were illegally made. (The infamous mobster was jailed on such charges.)

The case attracted national attention, prompting the U.S. secretary of labor to file a brief on behalf of six workers who were employed at the restaurant in the period spanning 2007 to 2010.

The appellate judges said that “numerous district courts, including the one in this case, and the secretary of labor all agree: Employers who unlawfully hire unauthorized aliens must otherwise comply with federal employment laws.”

The lawsuit said five of the six workers had each worked 77 hours a week at the restaurant. It said the workers were known to lack official work authorizations and were paid in cash on a weekly basis.

The case was brought in 2010 against the restaurant’s former owner, Farid Azzeh, and former manager, Adel Alazzeh. Attorneys said Jerusalem Cafe LLC, the corporate entity named in the suit, was dissolved and ownership was transferred to other parties.

The restaurant remains in business.

“In the face of overwhelming evidence to the contrary,” the court said, “Azzeh claimed photos and videos of the workers performing tasks in the restaurant showed the workers ‘volunteering’ and ‘posing for picture(s).’”

Azzeh also had testified at the trial that he “never hired illegals” after previously testifying that he could not “I-9” the workers.

Form I-9 is an employment eligibility verification required by U.S. Citizenship and Immigration Services.

The court held that “aliens, authorized to work or not, may recover unpaid and underpaid wages” under rights granted by the Fair Labor Standards Act.

The attorney for Azzeh and Alazzeh on appeal, Jonathan Sternberg, said they are being held individually liable for the back wages but are unable to pay. He said he recommended to his clients that he speak publicly in their behalf.

Heather Schlozman, who along with Mark Dugan represented the workers, said they intend to “take every step available to us under the law to collect the judgment” and are “investigating avenues of collection.”

That includes researching the ownership transfer.

“This was a resounding message from the court,” Schlozman said. “You can’t exploit these workers with impunity.”

Sternberg said his clients are likely to ask for a rehearing before all 11 judges in the 8th Circuit appellate court. The initial appeal was before a three-judge panel.

“My clients and I regret the way this came out, but we’re glad the court took it as seriously as it did,” Sternberg told The Star.

He said he believed, though, that a more appropriate role for the federal government would be to “enforce the borders.”

The U.S. Department of Labor argued in its brief that there is no conflict between labor law and immigration reforms, specifically the Immigration Reform and Control Act of 1986.

“Both statutes work in tandem to discourage employers from hiring unauthorized workers,” the court said, adding: “The Department of Labor’s position that the FLSA applies to aliens without employment authorization is longstanding and consistent.”

To reach Diane Stafford, call 816-234-4359 or send email to stafford@kcstar.com.

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