It's a classic South Florida story -- the two guys who installed your fancy hurricane shutters (trust me, you overpaid!) both allegedly failed to properly report their income to the IRS, plus one of them may be an undocumented alien not authorized to work in the United States -- oh, he also possibly used a fake Social Security number to get the job.
In other words -- not much different than most of the guys working around town.
Is that a sufficient reason for their employer to refuse to pay overtime?
No, says the 11th Circuit:
Appellants argue that Milan’s recovery should be barred because he would not have been hired absent his use of a false Social Security number. They further argue that both Feliciano’s and Milan’s recoveries should be barred because their tax violations are “connected with the matter in litigation.” However, both of these arguments misstate the test to be applied under Bateman Eichler. Not just any causal relationship or topical connection will do. “The plaintiff must be an active, voluntary participant in the unlawful activity that is the subject of the suit.” Id. at 636 (emphasis added). Appellants cannot satisfy that test because Feliciano and Milan did not participate in Appellants’ decision whether to pay them overtime wages in accordance with the FLSA. Therefore, the district court was correct to deny Appellants’ motion for judgment as a matter of law based on the in pari delicto doctrine.In other words, the fact you employed a possible tax cheat does not relieve you of your obligation to comply with FLSA -- good to know!