The New Jersey Law Journal recently published Louis Pechman and Miguel Tapia Colin’s article, “Once Work Is Performed, Undocumented Workers Must Be Paid.”
Below is the text of the Article:
Despite increasing anti-immigrant sentiments across the nation, the New Jersey Supreme Court recently reaffirmed two long-standing and important principles in wage theft litigation: (1) once work is performed, employers must pay workers regardless of their immigration status, and (2) immigration status is not generally discoverable or admissible evidence in those cases. These principles continue to protect the rights of undocumented workers under federal and state laws.
Lopez v. Marmic LLC
In Lopez v. Marmic LLC, 263 N.J. 225 (2026), Sergio Lopez, a superintendent who had provided an invalid Social Security Number (SSN) to his employer, Marmic LLC, stopped receiving wages after the employer discovered two weeks into Lopez’s employment that he was not authorized to work in the United Staes. While Marmic refused to issue any further payments, Marmic offered to let Lopez live in an apartment rent free in exchange for performing duties that the company asked him to do.
After working for Marmic for approximately three years, Lopez filed claims against Marmic for unpaid minimum and overtime wages as well as failure to pay full wages on a timely basis under New Jersey State Law. Ultimately, the trial court dismissed Lopez’s claims after it found Lopez not “credible or believable” because “he admitted that he lied when he listed a SSN on the W-4 form that he knew at the time wasn’t valid.” The court also took into consideration the agreement between Marmic and Lopez regarding Lopez’s rent-free apartment in exchange for work, and held that Lopez was not entitled to recover wages because he “did not articulate with any specificity the total number of hours worked.” Finally, the trial court also noted that “Lopez knew full well he wasn’t qualified to earn those wages legally because he was an undocumented alien.”
A New Jersey appellate court upheld the dismissal, reasoning that “because Lopez is an undocumented alien and was not eligible to work under federal law, there could be no employee-employer relationship between the parties,” and as a result, “Lopez was barred from relief and precluded from recovering damages.” Additionally, in upholding the dismissal, the appellate court declined to apply the burden-shifting approach of Anderson v. Mt. Clemens Pottery Co., reasoning that Lopez had “failed to proffer any time sheets or other documents supporting the hours he worked.”
In overturning the decisions of the two lower courts, the New Jersey Supreme Court unanimously held that (1) federal law does not preclude undocumented workers’ claims and their ability to recover under workers’ compensation and labor laws and (2) the agreement between Lopez and Marmic “neither satisfied nor voided the State’s wage and hour laws.” Moreover, the New Jersey Supreme Court also upheld the long-standing principle of a rebuttable presumption against employers who fail to preserve appropriate payroll records and cautioned against admitting evidence of an invalid SSN in wage and hour case without weighing the probative value.
Federal Law Does Not Preclude Undocumented Workers’ Wage and Hours Claims
The Immigration Reform and Control Act of 1986 (“IRCA”) made it illegal for employers to knowingly employ undocumented workers and established an employment verification system that employers must follow to verify the identity of potential employees and confirm that they are authorized to work in the United States. See generally 8 U.S.C. § 1324A. If an employer hires someone who is known to be undocumented or allows an employee to continue working after learning the person is undocumented, the employer is in violation of IRCA.
Like the New Jersey Supreme Court in Lopez, state courts across the nation have held that the IRCA does not prevent undocumented workers who have already performed work for an employer from receiving their lawfully due wages. As the Lopez Court reasoned, an “opposite conclusion–that IRCA preempts state wage and hour protections–would incentivize employers to hire undocumented workers,” which conflicts with the goal of IRCA. Lopez, 163 N.J. at 245 (citing Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 249 (2d Cir. 2006); Sanchez v. Dahlke Trailer Sales, Inc., 897 N.W.2d 267, 276 (Minn. 2017); Design Kitchen & Baths v. Lagos, 882 A. 2d 817, 830 (Md. 2005); Dowling v. Slotnik, 712 A.2d 396, 405 (Conn. 1998); Cont’l PET Techs., Inc. v. Palacias, 604 S.E.2d 627, 631 (Ga. Ct. App. 2004); Coma Corp. v. Kan. Dep’t of Labor, 154 P.3d 1080, 1087 (Kan. 2007)) .
Federal courts have also made clear that the protections of the FLSA are available to citizens and undocumented workers alike. The FLSA’s mandatory language leaves no discretion for courts to alter the statute’s remedial scheme based on an employee’s immigration status. See Colon v. Major Perry St. Corp., 987 F. Supp. 2d 451, 459 (S.D.N.Y. 2013). As explained by the Second Circuit in Madeira v. Affordable HousingFoundation Inc.:
An order requiring an employer to pay his undocumented workers the minimum wages for labor actually and already performed does not itself condone that [immigration] violation or continue it. It merely ensures that the employer does not take advantage of the violation by availing himself of the benefit of undocumented workers’ past labor without paying for it in accordance with minimum FLSA standards.
All workers are entitled to payment at or above the state-mandated minimum wage. An employer cannot assert a defense to wage payment on the grounds of the employee’s immigration status because such claims “vindicate not only the policy underlying the FLSA but also federal immigration policy.” Solis v. Cindy’s Total Care, Inc., 2011 U.S. Dist. LEXIS 138556, at *6-7 (S.D.N.Y. Dec. 2, 2011). The FLSA not only protects against the exploitation of undocumented workers, but also serves to protect the jobs of those who are authorized to work in the United States. In this regard, Magistrate Judge Ronald Ellis noted:
Failing to enforce FLSA because the employer raises the immigration status of his employee as a defense to compensation allows the employer to effectively be immunized from its duty under the statute to pay earned wages, and would thereby be able to undercut law-abiding employers who hired lawful workers, as those workers would not be disabled from vindicating their FLSA rights.
Angamarca v. Da Ciro, Inc., 303 F.R.D. 445, 447 (S.D.N.Y. 2012).
Immigration Status is Generally Not Discoverable/Admissible in Wage and Hour Litigation
During the litigation of wage theft claims, courts have repeatedly barred inquiries into the plaintiff’s immigration status because disclosure of this information would have a chilling effect and “effectively eliminate the FLSA as a means for protecting undocumented workers from exploitation and retaliation.” Rodriguez v. Pie of Port Jefferson Corp., 48 F. Supp. 3d 424, 428 (E.D.N.Y. 2014). The New Jersey Supreme Court in Lopez reasoned that courts should weigh the “probative value” of such evidence against “the risk of undue prejudice,” and noted that “evidence of a person’s undocumented status could appeal to prejudice, inflame certain jurors, and distract them.” For similar reasons, courts have repeatedly held that information about a plaintiff-worker’s immigration status cannot be used in wage theft cases. See, e.g., Flores v. Amigon, 233 F. Supp. 2d 462, 464-65 (E.D.N.Y. 2002) (finding plaintiff’s immigration status “not relevant to defendant’s defense” and that “potential for prejudice far outweighs [the] minimal probative value” of the information); Montoya v. S.C.C.P. Painting Contractors, Inc., 530 F. Supp. 2d 746, 750 (D. Md. 2008) (“the immigration status of a class representative is irrelevant in wage and hour cases”); Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 501-03 (W.D. Mich. 2005) (“defendants are not entitled to discover information regarding Plaintiffs’ immigration status”).
In conjunction with inquiries into immigration status, defendants often seek information regarding whether a plaintiff has filed taxes or if they have a valid Social Security Number, as in Lopez. These types of requests are often viewed as a workaround to determine immigration status or to undermine the plaintiff’s credibility and discourage the plaintiff from continuing with litigation. Courts, however, generally view this information as private and sensitive in nature and have held that the discoverability or admissibility of any evidence relating to immigration status should be highly scrutinized against the risk of undue prejudice.
Conclusion
Protection against wage theft applies equally to undocumented and documented workers. Unscrupulous employers, who believe that immigration status creates leverage for them in the employment relationship, may be surprised to learn that undocumented workers are well protected against wage theft and enjoy the protections and remedies available under the FLSA and state laws.
Reprinted with permission from the July 13, 2026 edition of the New Jersey Law Journal © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or [email protected].
