Courts Continue Rejecting Defendants' Post-Hoffman Inquiries into Plaintiffs' Immigration Status

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

COURTS CONTINUE REJECTING DEFENDANTS' POST-HOFFMAN INQUIRIES INTO PLAINTIFFS' IMMIGRATION STATUS
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

Since the Supreme Court's decision in Hoffman Plastic Compounds v. NLRB, which barred undocumented workers from receiving back pay under the National Labor Relations Act, defendants have been attempting to inquire into plaintiffs' immigration status in a variety of employment cases. (For a summary of the Hoffman decision, see "Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing," Immigrants' Rights Update, Apr. 12, 2002, p. 10). Fortunately, the courts have limited the impact of Hoffman by refusing to allow blanket inquiries into workers' immigration status, consistently holding that such inquiries have a chilling effect on their willingness to speak out against unlawful employment practices (see "Hoffman: Lower Courts Limit Impact of High Court's Decision Barring Undocumented Worker from Receiving Back Pay," Immigrants' Rights Update, May 30, 2002, p. 8).

A federal court in Illinois recently denied the defendants' motion to compel discovery concerning the plaintiffs' citizenship status in an action under the Fair Labor Standards Act (FLSA) involving the recovery of overtime wages. In Cortez v. Medina's Landscaping, defendants served discovery requests concerning the plaintiffs' immigration status after the Supreme Court decided Hoffman and after the discovery period for the case had closed. In denying the defendants' motion to compel, the court made clear that "Hoffman does not hold that an undocumented alien is barred from recovering unpaid wages for work actually performed." The court also reminded the defendants that the holding in Hoffman has been the rule in the Seventh Circuit since 1992, when the appellate court decided Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115 (7th Cir. 1992). The court noted that even then the Seventh Circuit had "expressly distinguished back pay for labor 'not performed' and unpaid wages for labor 'actually performed.'" Therefore, Hoffman does not give defendants in the Seventh Circuit (which encompasses Illinois, Indiana, and Wisconsin) a new avenue by which to probe into plaintiffs' immigration status or authorization to work.

Similarly, a federal court in the Eastern District of New York granted the plaintiff's motion for a protective order prohibiting the defendant from seeking discovery of the plaintiff's immigration documents, Social Security number, and passports. The plaintiff in Flores v. Amigon d/b/a La Flor Bakery brought a claim for unpaid overtime wages, alleging violations of state and federal laws. Following the reasoning set forth in Flores v. Albertsons, Inc., 2002 U.S. Dist. LEXIS 6171 (C.D. Cal. Apr. 9, 2002), and Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191 (S.D.N.Y. 2002), the court distinguished Hoffman as a case that limits back pay only for work "not performed." In holding that Hoffman does not apply to cases involving claims of unpaid wages for "work performed," the court noted that enforcing the FLSA's provisions actually furthers the policy goals of the Immigration Reform and Control Act of 1986 (which prohibits employers from knowingly hiring undocumented workers). Specifically, "If employers know that they will not only be subject to civil penalties . . . and criminal prosecution . . . when they hire illegal aliens, but . . . will also be required to pay them at the same rates as legal workers for work actually performed, there are virtually no incentives left for an employer to hire an undocumented alien in the first instance."

Further, the court found that while the discovery rules under the Federal Rules of Civil Procedure are to be construed generously and broadly, a protective order is necessary to counter the chilling effect of discovery requests regarding the plaintiffs' immigration status. If such requests are allowed, the court ruled, they would "effectively eliminate the FLSA as a means of protecting undocumented workers from exploitation and retaliation." In granting the protective order, the court noted that most undocumented immigrants would withdraw their claims or be deterred from filing any claims at all if they were forced to disclose information about their immigration status. The "potential for prejudice far outweighs whatever minimal probative value such information would have," the court observed.

Another federal court in Illinois recently rejected an attempt by the defendant to obtain documents from the plaintiffs relating to their authorization to work in the U.S. In De La Rosa v. Northern Harvest Furniture, the plaintiffs brought a class action lawsuit alleging violations of Title VII of the Civil Rights Act of 1964, the FLSA, and the Illinois Minimum Wage law. The defendant employer sought to compel the plaintiffs to produce documents showing their work authorization during the time they worked for the defendant and at present. The plaintiff employees were fired in March 2001 and were offered reinstatement in August of that year. The court found that, "when appropriate, post-termination back pay would cover the period after an employee is terminated and before the employer offers reinstatement." Thus, the plaintiffs were not required to provide proof of their work authorization, either during the time they worked for the defendant or currently, because both of those time periods fall outside the only potentially relevant timeframe—that between termination and the offer of reinstatement. The court did not decide whether the plaintiffs would have to provide proof of work authorization for the time period between the date they were fired and the date of the reinstatement offer because the defendants did not ask for that information.

Cortez v. Medina's Landscaping, 2002 WL 31175471 (N.D. Ill. Sept. 30, 2002);
Flores v. Amigon d/b/a La Flor Bakery, 02 CV 838 (SJ) (E.D.N.Y. Sept. 19, 2002);
De La Rosa v. Northern Harvest Furniture, 2002 WL 31007752 (Sept. 4, 2002).