As spring rolls in, muddy cars are a frequent occurrence, and car washes typically see increased patronage in the spring and summer months — which means longer hours for car wash employees. However, those employees are still entitled to overtime pay (and other legal protections) when high demand means increased work hours. Recently, car washes have been making headlines with their FLSA violations, particularly in New York and California, which have been investigating car wash operations.
California Labor Commissioner Julie A. Su filed two lawsuits in Los Angeles against three car wash businesses in early March. The suits allege violations of state minimum wage, overtime and recordkeeping laws, as well as meal and rest period requirements. The complaint seeks more than $2 million in damages.
New York’s Attorney General Eric Schneidermann is investigating car wash giant John Lage for possible wage and hour violations. Lage, who is connected to at least 21 car washes across New York City, was sued by the U.S. Department of Labor for the working conditions of six car washes in 2005. The current investigation is looking into: (1) allegations of wage, tip and overtime violations; (2) whether workers are required to pay for damage to customers’ cars; (3) whether workers are sent home without pay when it rains; and (4) whether injured workers are sent home without compensation.
Employees of the New York car washes allege conditions that, if true, warrant serious FLSA penalties. According to the employee reports, many work for $5.50 an hour (the state’s minimum wage is $7.25) and are not paid overtime, despite working more than eight hours per day. Often, the work requires employees to polish cars with harsh chemicals that cause nose bleeds and blurry vision, and no face masks are provided.
The investigations highlight a larger problem: what to do about undocumented immigrants? Although many FLSA violations are common in low-paying jobs like car washes, many employees are undocumented immigrants who are unwilling to speak out for fear of retaliatory firing or getting on the radar of immigration authorities.
Although undocumented immigrants do not pay taxes because of their status as “undocumented,” many federal courts (including some in New York and California) have ruled that they are nevertheless entitled to FLSA protections. Protecting the workers in such a way ensures that there is no incentive for employers to hire undocumented workers. In addition to New York and California, New Jersey, Illinois, Maryland and Florida courts have found that undocumented workers are entitled to FLSA protections. Of particular importance is DOL guidance stating that these workers are entitled to minimum wage and overtime — in fact, several federal courts used that DOL guidance when making their decision. Of course, such decisions still do not protect undocumented workers from investigations by immigration authorities.
The investigations in New York and California have occurred, in part, because of the employees’ undocumented status, which means they are more likely to earn low wages in underground industries. Other investigative concentrations have been in agriculture, garment manufacturing, janitorial services, restaurants and construction.
However, even employers that are not in one of these focused industries should ensure that they take the following steps:
- have proper licenses;
- carry workers’ compensation insurance;
- pay proper wages;
- make proper deductions;
- give employees a safe work environment; and
- maintain all employment records.