Two Whammies in Undocumented Worker Case - Worker May Recover Overtime Under FLSA and Individual Directors May Be Liable

by Adair Melinsky Buckner on May. 31, 2013

Employment Employment  Employee Rights Employment  Labor Law 

Summary: Undocumented workers are still entitled to recover unpaid overtime under the Fair Labor Standards Act.

Overtime payA recent Eleventh U.S. Circuit Court of Appeals case,Lamonica v. Safe Hurricane Shutters Inc., 11th Cir., No. 11-15743, (March 6, 2013), held that undocumented workers are still entitled to recover unpaid overtime under the Fair Labor Standards Act (FLSA).  Nine workers, including an undocumented worker, sued their former employer, Safe Hurricane Shutters Inc., its president and CEO, and two directors to recover unpaid overtime compensation. After trial, a jury found in favor of all the workers, and the trial court ordered the company and the individual defendants to pay the damages of two times the lost overtime wages.  All the defendants appealed.

In addition to the company’s contentions that the undocumented worker was not entitled to overtime, the company directors, who were individual defendants, argued that they should not be held liable because they were not officers and did not exercise sufficient operational control. The appeals court rejected both arguments.

On the first issue, the court distinguished another U.S. Supreme Court case saying undocumented workers may not rely on the National Labor Relations Act for remedies, and found the FLSA does cover undocumented workers.

On the director liability issue, the court stated that the test for individual liability for FLSA violations is whether there was sufficient operational control exercised by the individual.  The court looked at each individual defendant’s ownership interest and the level of control that each exercised over the day-to-day operations, stating that a supervisor does not need to be present every day to exercise the necessary control. The court found there was sufficient evidence here to support a finding that the directors exercised day-to-day operational control.

Adair Buckner is an Amarillo attorney with Buckner & Cross, L.L.P.  She is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business law, business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-322-7777 or This material is not intended to be legal advice. The contents are intended for general information purposes only.

To learn more about Adair visit her profile page and her practice labor and employment law.

Legal Articles Additional Disclaimer is not a law firm and does not offer legal advice. Content posted on is the sole responsibility of the person from whom such content originated and is not reviewed or commented on by The application of law to any set of facts is a highly specialized skill, practiced by lawyers and often dependent on jurisdiction. Content on the site of a legal nature may or may not be accurate for a particular state or jurisdiction and may largely depend on specific circumstances surrounding individual cases, which may or may not be consistent with your circumstances or may no longer be up-to-date to the extent that laws have changed since posting. Legal articles therefore are for review as general research and for use in helping to gauge a lawyer's expertise on a matter. If you are seeking specific legal advice, recommends that you contact a lawyer to review your specific issues. See's full Terms of Use for more information.