In a novel approach, Masayoshi Kaji, the owner of an LA sushi restaurant facing wage payment claims by two undocumented workers has filed a class-action lawsuit against the California labor commissioner for defying federal immigration law.

In April, the commissioner awarded the sushi restaurant owner’s two former employees more than $35,000 in back wages plus penalties. The award covers unpaid overtime, missed rest periods and missed meal periods between February 2005 and December 2007.

The class action seeks an injunction against the commissioner on behalf of Kaji and any California employers who are subject to an administrative action and an award of wages sought by a person who is not legally authorized to work in the United States. Kaji’s lawyer cites the precedent of Hoffman Plastics Compounds v. National Labor Relations Board, in which the U.S. Supreme Court overturned an award of back pay to an undocumented alien who sued an employer for a violation of the National Labor Relations Act.

Kaji has also asked the court to require the employees to reimburse him for all wages they received from him. But California Labor Code Section 1171.5 provides that “all protections, rights, and remedies available under state law are available to individuals regardless of immigration status who have applied for employment, or who are or who have been employed in this state.”

Federal courts have been careful to distinguish the Hoffman case, which applied to back work that had not actually been performed, from cases for work that has been performed.

In Kaji’s lawyer’s opinion, the employees were working here illegally, and therefore, the commissioner has no jurisdiction to give them wages.