AUTHOR : Melina V. Villalobos

The Fair Labor Standards Act minimum wage provisions may apply to J-1 Exchange visitors regardless of their immigration status, a federal District Court for the Middle District of Florida has held. Chaturong Jatupornchaisri v. Wyndham Vacation Ownership, Inc., 2012 U.S. Dist. LEXIS 63633 (M.D. Fla. May 7, 2012). The FLSA prescribes standards for the basic minimum wage and overtime pay and applies to most private and public employment. It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay.

A J-1 visa is a non-immigrant visa issued by the United States to exchange visitors participating in programs that promote cultural exchange, especially to obtain medical or business training within the U.S. All applicants must meet eligibility criteria and be sponsored either by a private sector or government program.

The court did not address whether the plaintiffs were in fact treated as “employees,” as such a factual dispute was not ripe for adjudication on a motion to dismiss. Thus, while J-1 immigration status will not prohibit a court finding a FLSA violation, plaintiffs will still bear the burden to prove that they were in fact “treated as employees” by the employer to fall within the ambit of the minimum wage protections afforded under the FLSA.

The court was silent regarding whether an employer could be liable for FLSA damages and be subject to administrative sanctions; thus, if an employer fails to follow the FLSA minimum wage provisions, it could be subject to additional administrative action. See 22 C.F.R. § 62.50 (describing administrative remedies as “reprimands, suspensions, terminations, and the placing of various conditions on the sponsoring organization”).

Jackson Lewis attorneys are available to assist employers with this and other workplace requirements.