United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2170

___________________________

Elmer Lucas; Margarito Rodas; Gonzalo Leal; Feliciano Macario; Bernabe

Villavicencio; Esvin Lucas

lllllllllllllllllllll Plaintiffs - Appellees

v.

Jerusalem Cafe, LLC; Farid Azzeh, Individually; Adel Alazzeh, Individually and as

successor in interest to Jerusalem Cafe LLC, doing business as Jerusalem Cafe, LLC

lllllllllllllllllllll Defendants - Appellants

___________________________

Secretary of Labor

lllllllllllllllllllllAmicus on Behalf of Appellee

____________

 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

____________

 Submitted: February 14, 2013

 Filed: July 29, 2013

____________

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

____________
RILEY, Chief Judge.

For varying periods between June 2007 and March 2010, Elmer Lucas and five

other aliens (collectively, workers), without employment authorization, toiled in the

Jerusalem Cafe (Cafe), some for less than minimum wage and all without receiving

overtime wages. The workers sued the Cafe, and its then-owner Farid Azzeh and

manager Adel Alazzeh (collectively, employers), for willfully violating the Fair Labor

Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et seq.. After a jury decided in the

workers’ favor, the district court1

 awarded the workers minimum and overtime wages,

statutory liquidated damages, and legal fees. The district court denied the employers’

motion for judgment as a matter of law, rejecting the argument that the workers, as

aliens without work authorization, lacked standing to sue. The employers appeal,

contending the FLSA does not apply to employers who illegally hire unauthorized

aliens. We disagree. The FLSA does not allow employers to exploit any employee’s

immigration status or to profit from hiring unauthorized aliens in violation of federal

law. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Facts2

This case concerns the employers’ failure to pay minimum and overtime wages

between June 2007 and March 2010. During this period, Azzeh, the owner of the

1

The Honorable David Gregory Kays, United States District Judge for the

Western District of Missouri.

2

The appellants’ statement of facts evinces a desire to retry some facts, but a

jury has decided the disputed questions of fact. As usual in such cases, we recount

“the facts in the light most favorable to the jury verdict.” Newhouse v. McCormick

& Co., 110 F.3d 635, 637 (8th Cir. 1997).

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Jerusalem Cafe, and Alazzeh, who held a managerial role in the Cafe, paid the

workers, in cash, at fixed weekly rates which did not vary based on overtime hours

worked.

1. Workers

The six individuals who brought this suit are (1) Feliciano Macario, (2) Gonzalo

Leal, (3) Elmer Lucas (Lucas), (4) Esvin Lucas (Esvin), (5) Margarito Rodas, and

(6) Bernabe Villavicencio. Table 1 lists the jury’s findings as to the workers’ weekly

hours, wages, and effective hourly wages during the period at issue in this case.

 

Table 1

Weekly

 Hours

Weekly

 Wage

Effective

Hourly Wage

Feliciano Macario

January 2008 to January 2010 77 $300 $3.90

Gonzalo Leal

June 2007 to September 2008 77 $420 $5.45

September 2008 to March 2010 77 $500 $6.49

Elmer Lucas

June 2007 to March 2008 77 $360 $4.68

March 2008 to September 2008 77 $480 $6.23

September 2008 to September 2009 77 $640 $8.31

September 2009 to March 2010 77 $560 $7.27

Esvin Lucas

June 2007 to January 2010 66 $550 $8.33

January 2010 to March 2010 60 $500 $8.33

Margarito Rodas

June 2007 to September 2008 77 $420 $5.45

September 2008 to March 2010 77 $500 $6.49

Bernabe Villavicencio

June 2007 to July 2009 77 $800 $10.39

July 2009 to March 2010 77 $700 $9.09

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On January 23, 2010, Macario called the police after Azzeh’s and Alazzeh’s

nephew allegedly struck him. Fearing the police would discover Azzeh employed

illegal aliens, Azzeh offered Macario $500 to drop the charges and return to work. 

Macario refused. The employers terminated Macario in January 2010, and also

terminated the other workers’ employment in March 2010 after the other workers

refused to falsify an employment application to make it appear they had not been

working for the Cafe before March 2010.

2. Employers’ Account

In the face of overwhelming evidence to the contrary, Azzeh claimed photos

and videos of the workers performing tasks in the restaurant showed the workers

“volunteering” and “posing for picture[s].” Azzeh also claimed the workers’ food

handler cards, issued by the Kansas City, Missouri, Health Department, see Kan. City,

Mo., Food Code § 8-304.11(I)(2), and listing the Cafe as the workplace, were obtained

in order to allow the workers to “volunteer” in the restaurant. Having observed the

trial, the district court called the employers’ account a “fantastic story.”

B. Procedural History

The workers filed an amended complaint in the Western District of Missouri on

July 30, 2010, alleging the employers willfully failed to pay minimum and overtime

wages in violation of the FLSA, 29 U.S.C. §§ 206(a), 207(a). On September 27, 2011,

the district court granted the workers’ motion in limine to preclude mention at trial of

the workers’ immigration status. The district court found the workers’ immigration

status “irrelevant” because they were seeking FLSA wages for previous work—not

prospective relief, which would be unlawful under the Immigration Reform and

Control Act of 1986 (IRCA), 8 U.S.C. § 1324a.

1. Trial

The district court held a four-day jury trial in November 2011. On the third

day, Rodas testified during cross-examination that Azzeh “knew that he would get in

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trouble if he would have hired illegals like us.” (Emphasis added.) After discussion

with counsel, the district court instructed the jury to “disregard the last statement made

by this witness in its entirety.” Later on the third day, during his cross-examination,

Azzeh wished to answer the question why he kept no record of the workers’ payments

by testifying that he could not “I-9”3

 the workers. After discussion among counsel,

the parties agreed to dissolve the order in limine, and the district court instructed the

jury that the order had changed “in order to give . . . a clearer picture of what[]

transpired here.” Azzeh then testified he had never employed the workers—with the

exception of Macario, whom he admitted hiring—because he “never hired illegals.”

The jury found in the workers’ favor. In accordance with the jury’s verdict, the

district court awarded $141,864.04 in actual damages for unpaid FLSA wages,

$141,864.04 in liquidated damages based on the jury’s finding that the employers

willfully failed to pay FLSA wages, $150,627.00 in legal fees, and $6,561.63 in

expenses.

2. Post-Trial Motions

The employers moved for judgment as a matter of law or a new trial, arguing

the workers “as undocumented aliens” were “prohibited by law from receiving any

wages . . . [and] lacked standing to sue for backpay under the [FLSA].” The district

court rejected both arguments. First, denying the employers’ motion for judgment as

a matter of law, the district court found the standing argument was “a belated attempt

by [the employers] to bring an affirmative defense” that the workers were not

employed within the meaning of the FLSA, 29 U.S.C. § 203(e)(1). The employers

waived that IRCA argument by failing to raise it until after trial, concluded the district

court. On the question of Article III standing, which cannot be waived, the district

3

The United States Citizenship and Immigration Services requires all 

employers to verify employment eligibility by properly completing a Form I-9,

Employment Eligibility Verification Form, for each employee. See 8 C.F.R. § 274a.2.

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court found the workers had standing to sue the employers because they (1) “suffered

an injury in fact,” (2) “this injury was the direct result of [the employers’] failure to

pay the lawful wage,” and (3) “the court’s judgment will redress the [workers’]

injuries.”

Second, the district court denied the employers’ motion for a new trial, finding

no error in the order precluding any reference to the workers’ immigration status. The

district court observed that “virtually all of the courts that have considered th[e] issue”

concluded immigration status “was irrelevant . . . because illegal aliens are not

precluded from recovering unpaid wages under the FLSA.” Even if its order were

erroneous, the district court found the error would be harmless because the employers

ultimately were able to discuss the workers’ immigration status in the employer’s case

and argue they would not have hired unauthorized workers. Rejecting the employers’

contention that they were prejudiced by their inability to discuss the workers’

immigration status from the beginning, the district court explained the employers’ 

testimony that they never employed the [workers], and that [the workers]

simply occasionally “volunteered” to work at the restaurant without pay

was contradicted by a mountain of more credible evidence, including a

video of [the workers] working in the restaurant’s kitchen and the

testimony of two disinterested police officers who, in attempting to

defuse a dispute, discussed with one of the [employers] how [the

workers] would be paid for their last days at work. Thus, even had [the

employers] been allowed to reference [the workers’] immigration status,

the weight of the evidence overwhelmingly established that [the workers]

were employees of the [employers], not volunteers.

(Second emphasis added). The employers filed a timely notice of appeal.

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II. DISCUSSION

“We review de novo a denial of a motion for judgment as a matter of law,”

Marez v. Saint-Gobain Containers, Inc., 688 F.3d 958, 962 (8th Cir. 2012), and a

decision that a plaintiff has standing, see Hargis v. Access Capital Funding, LLC, 674

F.3d 783, 790 (8th Cir. 2012). We give “high deference” to a district court’s denial

of a motion for a new trial, reviewing it for an abuse of discretion. PFS Distrib. Co.

v. Raduechel, 574 F.3d 580, 592 (8th Cir. 2009). We also “defer[] to a district court’s

familiarity with the details of the case and its greater experience in evidentiary

matters,” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008),

reversing a district court’s evidentiary ruling “only if the . . . ruling was based on an

erroneous view of the law or a clearly erroneous assessment of the evidence and

affirmance would result in fundamental unfairness,” Rodrick v. Wal-Mart Stores E.,

L.P., 666 F.3d 1093, 1096 (8th Cir. 2012) (internal quotation marks omitted) (quoting

Wegener v. Johnson, 527 F.3d 687, 690 (8th Cir. 2008)). 

A. FLSA Applicability to Unauthorized Aliens

The only circuit court to address the question directly, see Patel v. Quality Inn

S., 846 F.2d 700 (11th Cir. 1988); numerous district courts, including the one in this

case;4

 and the Secretary of Labor (Secretary) all agree: employers who unlawfully hire

unauthorized aliens must otherwise comply with federal employment laws. The

employers’ argument to the contrary rests on a legal theory as flawed today as it was

in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit income.5

4

See, e.g., Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1279-81, 1286

(N.D. Okla. 2006); Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 321-25

(D.N.J. 2005); Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 501-03 (W.D.

Mich. 2005); Flores v. Amigon, 233 F. Supp. 2d 462, 463-64 (E.D.N.Y. 2002); Singh

v. Jutla & C.D. & R’s Oil, Inc., 214 F. Supp. 2d 1056, 1060-62 (N.D. Cal. 2002); Liu

v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y. 2002).

5

See Meyer Berger, Capone Convicted of Dodging Taxes; May Get 17 Years,

N.Y. Times, October 17, 1931, available at http://www.nytimes.com/

learning/general/onthisday/big/1017.html#article.

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As Justice Oliver Wendell Holmes explained in United States v. Sullivan, 274 U.S.

259, 263 (1927), there is no “reason why the fact that a business is unlawful should

exempt it from paying the taxes that if lawful it would have to pay.” Here, too, there

is no “reason why the fact that” the employers unlawfully hired the workers “should

exempt” them “from paying the” wages “that if lawful” they “would have to pay.” Id.

“Certainly there is no reason for treating” the employers “more leniently.” Rutkin v.

United States, 343 U.S. 130, 137 (1952). Like the Eleventh Circuit, we hold that

aliens, authorized to work or not, may recover unpaid and underpaid wages under the

FLSA. See Patel, 846 F.2d at 706 (“[U]ndocumented workers are ‘employees’ within

the meaning of the FLSA and . . . such workers can bring an action under the act for

unpaid wages and liquidated damages.”).

1. Plain Text of the FLSA

Because this case is one of statutory interpretation, our “starting point . . . is the

existing statutory text.” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). As to minimum

wages, the text of the FLSA states “[e]very employer shall pay to each of his

employees who in any workweek is engaged in commerce or in the production of

goods for commerce, or is employed in an enterprise engaged in commerce or in the

production of goods for commerce, wages at the [minimum wage rate].” 29 U.S.C.

§ 206(a) (emphasis added). The FLSA’s overtime wage scheme is more complex, but

the crux is simple: “[n]o employer shall employ any of his employees . . . for a

workweek longer than forty hours unless such employee receives compensation for

his employment in excess of the hours above specified at a rate not less than one and

one-half times the regular rate at which he is employed.” Id. § 207(a)(1).

The FLSA’s sweeping definitions of “employer” and “employee”

unambiguously encompass unauthorized aliens:

(d) “Employer” includes any person acting directly or indirectly in the

interest of an employer in relation to an employee and includes a public

agency, but does not include any labor organization (other than when

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acting as an employer) or anyone acting in the capacity of officer or

agent of such labor organization.

(e)(1) [With certain statutorily defined exceptions], the term “employee”

means any individual employed by an employer.

. . . .

(g) “Employ” includes to suffer or permit to work.

29 U.S.C. § 203(d), (e)(1), (g) (emphasis added). During debate over the FLSA, thenSenator Hugo Black (who, shortly before his elevation to the Supreme Court,

sponsored the bill that ultimately became the FLSA) called the FLSA’s “definition of

employee . . . the broadest definition that has ever been included in any one act.” 81

Cong. Rec. 7656-57 (1937).

Importantly, Congress showed elsewhere in the statute that it “knows how to”

limit this broad definition “when it means to,” City of Milwaukee v. Illinois &

Michigan, 451 U.S. 304, 329 n.22 (1981), and it did not do so with respect to 

unauthorized aliens. See 29 U.S.C. § 203(e). The FLSA contains detailed limitations

for certain governmental employees, see id. § 203(e)(2); family members engaged in

agricultural work, see id. § 203(e)(3); state, local, and interstate governmental

volunteers, see id. § 203(e)(4); and “individuals who volunteer their services solely

for humanitarian purposes to private non-profit food banks and who receive from the

food banks groceries,” id. § 203(e)(5). Nowhere in this list do we see any indication

Congress meant to exclude unauthorized aliens from the FLSA’s broad application to

“any individual” whom an employer “suffer[s] or permit[s] to work.” Id. § 203(e)(1),

(g). 

As the Supreme Court has long emphasized, “where, as here, the statute’s

language is plain, ‘the sole function of the courts is to enforce it according to its

terms.’” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting

Caminetti v. United States, 242 U.S. 470, 485 (1917)). Because the FLSA by its plain

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terms protects aliens working without authorization, the employers’ argument must

fail unless the employers can point to a different statutory basis for limiting “the

broadest definition that has ever been included in any one act,” 81 Cong. Rec. at 7657.

2. IRCA

The employers point to the Supreme Court’s decision in Hoffman Plastic

Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), for the proposition that the IRCA

implicitly amended the FLSA to exclude unauthorized aliens. The employers misread

Hoffman, ignore the relevant agency’s reasonable interpretations of the FLSA and the

IRCA, and “ascribe to Congress an intent at variance with the purpose[s] of th[e]

statute[s],” Wyandotte Transp. Co. v. United States, 389 U.S. 191, 200 (1967).

a. Hoffman

In Hoffman, the Supreme Court held that unauthorized aliens may not receive

backpay after being terminated for engaging in union activities protected by the

National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169. See Hoffman, 535

U.S. at 151-52. The issue in Hoffman was not, as the employers seem to think,

whether the NLRA’s broad definitions of “employer” and “employee,” see 29 U.S.C.

§ 152, excluded unauthorized aliens from all protection by the National Labor

Relations Board (NLRB). See Hoffman, 535 U.S. at 142-43. Rather, the question in

Hoffman was whether the NLRB’s remedial power extended far enough to “allow it

to award backpay to an illegal alien for years of work not performed.” Id. at 149

(emphasis added). Far from concluding the NLRA did not protect unauthorized aliens

for work actually performed, the Hoffman court—after considering Congress’s

intervening enactment of the IRCA—reaffirmed its earlier holding in Sure-Tan, Inc.

v. NLRB, 467 U.S. 883 (1984), that the NLRA applies to the actual employment of

unauthorized aliens. See Hoffman, 535 U.S. at 151-52; Sure-Tan, 467 U.S. at 893-94. 

Not only is our reading of Hoffman consistent with the overwhelming majority

of post-Hoffman decisions by courts at every level, but “[n]o circuit court has reached

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a contrary conclusion,” Agri Processor Co. v. NLRB, 514 F.3d 1, 5-6 (D.C. Cir.

2008). In Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219 (2d Cir. 2006), the

Second Circuit explained: 

[A]n order requiring an employer to pay his undocumented workers the

minimum wages prescribed by the [FLSA] for labor actually and

already performed . . . . does not . . . condone that 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. 

Id. at 243. Interpreting an analogous definition of “employee” in Agri Processor, the

D.C. Circuit found “absolutely no evidence that in passing IRCA Congress intended

to repeal the NLRA to the extent its definition of ‘employee’ include[d]

undocumented aliens.” Agri Processor, 514 F.3d at 5. 

Shortly after our court heard argument in this case, the Eleventh Circuit

reaffirmed its decision in Patel “that undocumented aliens may recover their unpaid

wages under the FLSA.” Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299,

1306 (11th Cir. 2013). Rejecting arguments similar to those advanced by the

employers here, the Eleventh Circuit concluded “the IRCA does not express

Congress’s clear and manifest intent to exclude undocumented aliens from the

protection of the FLSA.” Id. at 1308.

b. Agency Interpretation

As the Secretary explains, there is no conflict between the FLSA and the IRCA. 

Both statutes work in tandem to discourage employers from hiring unauthorized

workers by “assur[ing] that the wages and employment of lawful residents are not

adversely affected by the competition of illegal alien employees who are not subject

to the standard terms of employment,” Sure-Tan, 467 U.S. at 893. 

-11-
The Department of Labor’s position that the FLSA applies to aliens without

employment authorization is longstanding and consistent. In 1942, just four years

after the FLSA’s passage, the Department of Labor’s “Wage and Hour Administrator

opined that alien prisoners of war were covered by the [FLSA] and therefore were

entitled to be paid the minimum wage.” Patel, 846 F.2d at 703. Since then, in case

after case, the Department of Labor has taken the same position it takes here.6

In the Secretary’s amicus brief filed in this case, the Secretary explains that

applying the FLSA to unauthorized aliens “is essential to achieving the purposes of

the FLSA to protect workers from substandard working conditions, to reduce unfair

competition for law-abiding employers, and to spread work and thereby reduce

unemployment by requiring employers to pay overtime compensation.” Given the

Department’s decades-long consistency and the Secretary’s “specialized experience

and broader investigations and information” in these matters, we think the Secretary’s

position is persuasive and merits Skidmore deference—to the extent there is any

statutory ambiguity. Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944); see also

Godinez-Arroyo v. Mukasey, 540 F.3d 848, 850 (8th Cir. 2008).

6

See, e.g., Patel, 846 F.2d at 703 (“The Department of Labor . . . supports

Patel’s position”); Donovan v. Burgett Greenhouses, Inc., 759 F.2d 1483, 1485 (10th

Cir. 1985) (involving a suit by the Secretary of Labor in his official capacity to

enforce the FLSA rights of “illegal aliens who were paid less than a dollar per hour

and were not paid overtime compensation”); Brennan v. El San Trading Corp., 73

Lab. Cas. 33,032, 1973 WL 991, at *1 (W.D. Tex. Dec. 26, 1973) (addressing a suit

by the Secretary in his official capacity); Dep’t of Labor’s Br., Josendis v. Wall to

Wall Residence Repairs, Inc., No. 09-12266 (11th Cir. dated Aug. 26, 2010), available

at http://www.dol.gov/sol/media/briefs/josendis(A)-8-26-2010.pdf; see also U.S.

Dep’t of Labor, Wage and Hour Div., “Fact Sheet #48: Application of U.S. Labor

Laws to Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced

by the Wage and Hour Division” (rev. July 2008), available at

https://www.dol.gov/whd/regs/compliance/whdfs48.pdf (“The Department’s Wage

and Hour Division will continue to enforce the FLSA . . . without regard to whether

an employee is documented or undocumented.”). 

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c. Congressional Purpose

We agree with the Secretary’s position, independent of any deference to the

Department of Labor’s expertise, because Congress’s purposes in enacting the FLSA

and the IRCA are in harmony. The IRCA unambiguously prohibits hiring

unauthorized aliens, and the FLSA unambiguously requires that any unauthorized

aliens—hired in violation of federal immigration law—be paid minimum and overtime

wages. The IRCA and FLSA together promote dignified employment conditions for

those working in this country, regardless of immigration status, while firmly

discouraging the employment of individuals who lack work authorization. “If an

employer realizes that there will be no advantage under the” FLSA “in preferring

[unauthorized] aliens to legal resident workers, any incentive to hire such . . . aliens

is correspondingly lessened.” Sure-Tan, 467 U.S. at 893. Exempting unauthorized

aliens from the FLSA would frustrate the purposes of the IRCA, for unauthorized

workers’ “acceptance . . . of jobs on substandard terms as to wages and working

conditions can seriously depress wage scales and working conditions of citizens and

legally admitted aliens.” De Canas v. Bica, 424 U.S. 351, 356-57 (1976). 

Holding employers who violate federal immigration law and federal

employment law liable for both violations advances the purpose of federal

immigration policy by “offset[ting] what is perhaps the most attractive feature of

[unauthorized] workers—their willingness to work for less than the minimum wage.” 

Patel, 846 F.2d at 704. For this reason, prohibiting employers from hiring

unauthorized aliens is in harmony with requiring employers—including those who

break immigration laws by hiring unauthorized workers—to provide fair working

conditions and wages. Both (1) the legislative history of the IRCA, which we

reference “for those who find legislative history useful,” United States v. Tinklenberg,

563 U.S. ___, ___, 131 S. Ct. 2007, 2015 (2011), and (2) “our steadfast canons of

statutory construction,” United States v. Johnson, 703 F.3d 464, 468 (8th Cir. 2013),

confirm this point. 

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First, the House Committee on Education and Labor’s report on the IRCA

explained Congress did

not intend that any provision of [the IRCA] would limit the powers of

State or Federal labor standards agencies such as . . . the Wage and Hour

Division of the Department of Labor . . . to remedy unfair practices

committed against undocumented employees for exercising their rights

before such agencies or for engaging in activities protected by these

agencies. To do otherwise would be counter-productive of our intent to

limit the hiring of undocumented employees and the depressing effect on

working conditions caused by their employment.

H.R. Rep. No. 99-682(II), at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5758

(emphasis added). When Congress passed the IRCA, at least the authors of this report

expected the FLSA would continue to protect unauthorized aliens from substandard

working conditions and wages.

Second, § 111(d) of the IRCA “authorized to be appropriated, . . . such sums as

may be necessary to the Department of Labor for enforcement activities of the Wage

and Hour Division . . . in order to deter the employment of unauthorized aliens and

remove the economic incentive for employers to exploit and use such aliens.” Pub. L.

No. 99-603, § 111(d), 100 Stat. 3359, 3381 (1986). Presuming, as the employers do,

that the IRCA impliedly exempts unauthorized aliens from the protections of the

FLSA would render this section “mere surplusage,” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 174 (1803). No “sums” would “be necessary” to enforce the FLSA as

to unauthorized aliens if the FLSA did not apply to their employment. § 111(d), 100

Stat. at 3381. A reading that turns an entire subsection into a meaningless aside “is

inadmissible, unless the words require it.” Marbury, 5 U.S. (1 Cranch) at 174. The

IRCA’s words do not require it, so “the presumption against surplusage [is] decisive.” 

Johnson, 703 F.3d at 468. 

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For these reasons, we hold that unauthorized aliens may sue under the FLSA,

29 U.S.C. §§ 206(a), 207(a), 216(b), to recover statutory damages for work actually

performed.

B. Standing

Because the FLSA gives the workers a right to sue the employers and obtain a

real remedy for a statutory wrong, the workers have both Article III and prudential

standing to recover damages from the employers.

1. Article III Standing

The employers violated the FLSA by paying the workers substandard wages,

which means the workers’ suit to recover damages is a justiciable “Case[]” or

“Controvers[y]” under Article III. U.S. Const. art. III, § 2; see Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). First, the underpayment for actual work was

“an ‘injury in fact.’” Id. at 560. Second, that underpayment “fairly can be traced to

the challenged action of the defendant[s].” Simon v. E. Ky. Welfare Rights Org., 426

U.S. 26, 41 (1976). Third, the district court’s judgment, awarding actual and

liquidated damages for the employers’ FLSA violations, was a “favorable decision”

providing “redress[]” in the form of financial damages. Id. at 38.

2. Prudential Standing

The employers did not raise their prudential standing argument until after the

jury reached its verdict and the district court entered judgment in the workers’ favor,

so if a challenge alleging a lack of prudential standing is waivable, the employers

resoundingly waived it. See, e.g., Ensley v. Cody Res., Inc., 171 F.3d 315, 320 (5th

Cir. 1999) (holding a defendant waived a challenge to prudential standing by

objecting “too late,” after the plaintiff’s case-in-chief). But our court has never

directly decided whether prudential standing is a waivable exercise in judicial selfrestraint or a jurisdictional bar “‘determining the power of the court to entertain the

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suit.’” Urban Contractors Alliance of St. Louis v. Bi-State Dev. Agency, 531 F.2d

877, 881 (8th Cir. 1976) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). 

Some of our cases have referred to prudential standing in jurisdictional terms. 

See, e.g., Delorme v. United States, 354 F.3d 810, 815 (8th Cir. 2004) (“A party

invoking federal jurisdiction must establish that he has met the requirements of both

constitutional and prudential standing.”); Starr v. Mandanici, 152 F.3d 741, 750 (8th

Cir. 1998) (“Assuming, arguendo, that the Article III requirements of standing were

fulfilled, this court still lacks jurisdiction because [the plaintiff] cannot satisfy the

judicially-imposed prudential standing principles.”).7

 Other cases have more carefully

distinguished between jurisdictional power and self-imposed judicial restraint. See,

e.g., Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 934 (8th Cir. 2012)

(“‘Constitutional and prudential standing are about, respectively, the constitutional

power of a federal court to resolve a dispute and the wisdom of so doing.’” (quoting

Graden v. Conexant Sys., Inc., 496 F.3d 291, 295 (3d Cir. 2007)); Cent. S. Dakota Coop. Grazing Dist. v. Sec’y of the USDA, 266 F.3d 889, 895 (8th Cir. 2001) (“The

issue of standing implicates constitutional limitations on federal court jurisdiction and

prudential limitations on the exercise thereof.”); cf. Henderson ex rel. Henderson v.

Shinseki, 562 U.S. ___, ___, 131 S. Ct. 1197, 1202-03 (2011) (“We have urged that

a rule should not be referred to as jurisdictional unless it governs a court’s

adjudicatory capacity, that is, its subject-matter or personal jurisdiction.” (emphasis

added)). 

7

We do not read these case references to “jurisdiction” to have decided the

question whether prudential standing governs our adjudicatory capacity. See, e.g.,

Delorme, 354 F.3d at 817 (relying solely on an absence of “constitutional standing”

to affirm dismissal). To the extent these cases turned on missing prudential standing,

its absence gave us a reason to decline to exercise jurisdiction. See, e.g., Starr, 152

F.3d at 750 (“[S]tanding ‘involves both constitutional limitations on federal-court

jurisdiction and prudential limitations on its exercise.’” (emphasis added) (quoting

Warth, 422 U.S. at 498)).

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We are reluctant—without the benefit of dedicated briefing, which the parties

have not provided—to venture into the “deep and important circuit split on this

important issue.” Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 185 (D.C. Cir. 2012)

(Kavanaugh, J., dissenting). Compare id. at 172, 179-80 (majority opinion)

(dismissing for “lack of jurisdiction” because of a failure “to demonstrate prudential

standing”), with, e.g., Bd. of Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417 (5th

Cir. 2012) (“Unlike constitutional standing, prudential standing arguments may be

waived.”); Rawoof v. Texor Petroleum Co., 521 F.3d 750, 756 (7th Cir. 2008)

(“Prudential-standing doctrine is not jurisdictional in the sense that Article III standing

is.” (internal quotation omitted)); Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir.

2007) (same); Gilda Indus., Inc. v. United States, 446 F.3d 1271, 1280 (Fed. Cir.

2006) (holding the government defendant waived any challenge to the plaintiff’s lack

of prudential standing by failing to raise the issue in its brief). Though the prudential

standing question lies near the heart of this case, we need not resolve the issue in

order to resolve this appeal. 

Regardless of any waiver by the employers, the workers have prudential

standing. A plaintiff has prudential standing to bring a claim if “the constitutional or

statutory provision on which the claim rests properly can be understood as granting

persons in the plaintiff’s position a right to judicial relief.” Warth, 422 U.S. at 500. 

Here, Congress has spoken unambiguously: “[a]ny employer who violates the

[minimum and overtime wage] provisions of [the FLSA] shall be liable to the

employee or employees affected in the amount of their unpaid minimum wages, or

their unpaid overtime compensation, as the case may be, and in an additional equal

amount as liquidated damages.” 29 U.S.C. § 216(b) (emphasis added). Because the

workers here are “employees” under the FLSA, see 29 U.S.C. § 203(e), they plainly

fall within the “zone of interests protected or regulated by” § 216(b). Bennet v. Spear,

520 U.S. 154, 162 (1997).

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C. Suppression of Evidence

Having decided the FLSA protects unauthorized aliens and the workers have

standing to sue the employers for violating the FLSA, we swiftly reject the employers’

challenge to the district court’s decision to suppress evidence related to the workers’

immigration status. 

Our review of the district court’s evidentiary rulings is highly deferential,

“particularly . . . with respect to [Federal Rule of Evidence] 403” because the district

court is better positioned than we are to weigh the probative value of a piece of

evidence, in context, against its prejudicial effect. Sprint/United, 552 U.S. at 384. 

Because the workers were seeking redress only for work actually performed, the

district court reasonably concluded any reference to the workers’ immigration status

would be substantially more prejudicial than probative under Rule 403. 

Even if the district court’s exercise of discretion were ill-advised, “affirmance

would [not] result in ‘fundamental unfairness,’” Rodrick, 666 F.3d at 1096 (quoting

Wegener, 527 F.3d at 690), because, as the district court reasoned, the “mountain of

more credible evidence” supporting the workers’ case towers over any potential harm. 

Furthermore, the order in limine was eventually dissolved, leaving the employers free

to testify regarding the workers’ lack of employment authorization, and the employers

argued the Cafe never employed the workers because the employers “never hired

illegals.”

The employers have fallen well short of the threshold required for us to reverse

the district court’s evidentiary ruling.

III. CONCLUSION

Consistent with the principle that breaking one law does not give license to

ignore other generally applicable laws, we affirm.

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LOKEN, Circuit Judge, concurring.

I join Chief Judge Riley’s thorough opinion for the court with the exception of

Part II.A.2.c.

I also note that, as in Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299

(11th Cir. 2013), appellants have not challenged on appeal the award of liquidated

damages under the Fair Labor Standards Act. We therefore do not consider that

issue. But in my view, the question whether the Supreme Court’s decision in

Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), may require a

modified analysis of the liquidated damages issue, at least in some cases, is not free

from doubt. See Madeira v. Affordable Housing Found., Inc., 469 F.3d 219, 255 (2d

Cir. 2006) (Walker, J., concurring); Rivera v. NIBCO, Inc., 384 F.3d 822, 833-35 (9th

Cir. 2004) (Bea, J., dissenting from the denial of rehearing en banc).

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