Tag Archives: Undocumented Immigrants

W.D.Wash.: Plaintiffs’ Immigration Status Irrelevant To FLSA/RCW Claims; Affirmative Defense Seeking To Estop Undocumented Immigrants From Recovery Based On Immigration Status Dismissed; No Counterclaim Against A Plaintiff For Indemnity Is Legally Cognizable Either

Bailon v. Seok AM No. 1 Corp.

This case was before the court on plaintiffs’ motion to dismiss and motion for protective order.  The issues presented turned largely around the question of whether the immigration status of plaintiffs/employees is at all relevant to the claims those employees filed against their defendant/employer under the Fair Labor Standards Act (“FSLA”) 29 U.S.C. §§ 201-219 and the Washington Minimum Wage Act (“MWA”) RCW 49.48.010 et. seq. Defendants sought to pursue discovery against plaintiffs arguing that their alleged status as illegal aliens prevents them from pursuing claims for unfair employment practices.  The Court concluded that the plaintiffs’ immigration status is irrelevant to any valid claim or defense and that public policy prohibits defendants from pursuing such discovery.  Additionally, the Court held that an FLSA Plaintiff may not properly be the subject of a counterclaim for indemnity based on actions taken as Defendants’ supervisory employee. 

The Court framed the issues before it as follows: (1) Whether alleged undocumented-worker immigration status provides a defense or counterclaim in an FLSA/MWA case for work already performed; (2) Whether FLSA/MWA defendants have a right to seek indemnity or contribution from third parties such as co-workers or joint employers; and (3) Whether FLSA/MWA claims are subject to personal defenses such as waiver, estoppel, unclean hands, laches, “independent intervening conduct of” third party, failure to mitigate damages, “equal[ ] or exceed[ing] fault of plaintiffs,” proximate cause of third party, failure to pay taxes, or a public policy punitive damages defense.

Addressing Plaintiffs’ Motion to Dismiss Defendants’ Affirmative Defenses first, the Court stated, “After carefully reviewing the case law and the facts as alleged by the parties, it appears that plaintiffs’ immigration status is irrelevant to any issue in this case. While the Supreme Court ruled that immigration status bars recover for future wages, see Hofman Plastics Compounds v. NLRB, 535 U.S. 137, 149, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), if the wage claim involves damages for past work performed, then the immigration status of the plaintiff is irrelevant. See Rivera v. Nibco, Inc., 364 F.3d 1057, 1063-69 (9th Cir.1004) (discussing Hoffman, Title VII claims for back wages are not barred because of employee’s immigration status).

Furthermore, although there is no Washington case directly on point, Washington courts have consistently construed the MWA in the same manner as the FLSA. See, e.g., Hisle v. Todd Pacific Shipyards Corp., 151 Wash.2d 853, 862, 93 P.3d 108 (2004); Chelan County Deputy Sherifs’ Assoc. v. County of Chelan, 109 Wash.2d 282292-93, 745 P.2d 1 (1987). While not binding, in the absence of state authority to the contrary, the federal precedent is persuasive on this issue. This appears to be consistent with the Washington State Department of Labor and Industries’ policy, as stated by its Director in May of 2002, following the Hoffman Plastics decision. The Washington State Director of Labor & Industries, Gary Moore, issued the following statement:

The 1972 law that revamped Washington’s workers’ compensation system is explicit: All workers must have coverage. Both employers and workers contribute to the insurance fund. The Department of Labor and Industries is responsible for protecting worker safety, ensuring that all workers be paid at least the minimum wage and providing workers with medical care and wage replacement when an injury or an occupational disease prevents them from doing their job. The agency has and will continue to do all that without regard to the worker’s immigration status. Exhibit 2 to Schmitt Decl. (Statement by Gary Moore, Director of the Department of Labor & Industries, May 21, 2002) Doc. # 11.

Therefore, there appear to be no set of facts that would support any of defendants’ allegations that plaintiffs’ claims under the FLSA are barred by their immigration status. Furthermore, defendants have cited no authority for the proposition that the WMA claims should be barred because of plaintiffs’ immigration status either. Accordingly, plaintiffs’ motion to dismiss defendants’ counterclaim alleging that plaintiffs lacked “standing to be lawfully employed” is hereby GRANTED.”

Next the Court turned to the question of whether an FLSA Plaintiff may ever be required to indemnify Defendants for actions committed as a supervisor under Defendants’ employ.  Answering this question in the negative, the Court stated, “The Court is unaware of any case in the Ninth Circuit regarding whether an individual supervisor may be held liable for contribution or indemnity to another defendant who may be liable for violations of the FLSA. But several other courts of appeals in other circuits have rejected claims seeking indemnity or contribution under those circumstances. See LeCompte v. Chrysler Credit Corp., 780 F.2d 1260, 1264 (5th Cir.1986) (affirming dismissal of employer’s counterclaim against supervisory personnel for indemnity of plaintiffs’ claims under FLSA, and stating, “No cause of action for indemnity by an employer against its employees who violate the Act appears in the statute, nor in forty years of its existence has the Act been construed to incorporate such a theory”; Lyle v. Food Lion, 954 F.2d 984, 987 (4th Cir.1992) (affirming dismissal of employer’s counterclaim and third-party complaint for indemnity against plaintiff-supervisor for plaintiffs’ FLSA claims); Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th Cir.1992) (holding employer’s third-party complaint seeking indemnity from employee for alleged FLSA violations was preempted); Herman v. RSR Sec. Services Ltd., 172 F.3d 132, 144 (2d Cir.1999) (affirming dismissal of corporation chairman’s claims for contribution and indemnification against his co-owner and corporation’s manager and vice president).

 The Court is persuaded that it should dismiss defendants’ counterclaim seeking indemnity or contribution in this case. To rule otherwise would frustrate Congress’ purpose in enacting the FLSA, since an employer who believed that any violation of the statute’s overtime or minimum wage provisions could be recovered from its employees would have a diminished incentive to comply with the statute. LeCompte, 780 F.2d at 1264.

 Defendants argue they are entitled to assert their contribution and indemnity claim(s) based on state law, citing RCW 49.52.050, 49.52.070, Morgan v. Kingen, 166 Wash.2d 526, 210 P.3d 995 (2009), and Ellerman v. Centerpoint Prepress, 143 Wash.2d 514, 22 P.3d 795 (2001). Defendants’ argument misses the mark. This authority stands for the proposition that plaintiffs may have a claim against an individual supervisor, but does not stand for the proposition that another defendant who may be liable for wage claims has a contribution or indemnity claim against someone similarly situated.

Furthermore, the FLSA’s preclusion of contribution and indemnity claims preempts state law. “Creation of a state-law-based indemnity remedy on behalf of employers would not serve the congressional purpose of creating and maintaining minimum standards of employment throughout the national economy.”   LeCompte, 780 F.2d at 1264.

In sum, plaintiffs’ motion to dismiss is GRANTED; defendants’ counterclaim based on contribution or indemnity against Plaintiff Esquivel is DISMISSED.”

 Last, the Court granted Plaintiffs’ Motion for a Protective Order regarding discovery sought concerning their immigration status.

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Filed under Affirmative Defenses, Discovery, Immigration Status

M.D.Tenn.: Police Officers Who Allegedly Arrested Employees In Retaliation For Informal Unpaid Wage Complaints Are Properly Defendants In A 29 U.S.C. § 215(a) Case

Montano-Perez v. Durrett Cheese Sales, Inc.

Defendant, a local Police Department, sued for their alleged role in retaliating against Plaintiffs, in cooperation with Plaintiffs’ employer filed a Motion to Dismiss the FLSA Retaliation claims asserted against it.  For the reasons discussed below, the Court denied the Police Department’s motion.

The Court cited the following extensive facts as relevant to its inquiry:

“The plaintiffs are Latino immigrants who moved to the Manchester, Tennessee, area from impoverished regions of Mexico. The plaintiffs speak either Mixteco, an indigenous Mexican language, or Spanish as their primary language. Shanna Ramirez was a supervisor with Durrett Cheese during the relevant time period, and she recruited and hired members of the Mixteco community in Manchester to work in non-supervisory positions with Durrett Cheese. Mostly all of the non-supervisory positions in the Durrett Cheese factory were filled by Latino workers of Mexican descent. The plaintiffs were hired by Durrett Cheese at various points in the late 2006 to late 2007 time period. After being hired, the plaintiffs performed various jobs in the factory, including “in-line” jobs slicing, packaging, and processing cheese for sale. At the time of hire, the plaintiffs understood that Durrett Cheese would pay them on a weekly basis at an hourly rate between approximately $6.00 and $6.75 per hour.

The plaintiffs’ employment with Durrett Cheese was problematic. The plaintiffs’ direct supervisor, Ms. Ramirez, frequently made offensive and potentially humiliating comments to the plaintiffs about their race, national origin, intelligence, language, and customs, among other things. Durrett Cheese also frequently failed to timely pay the plaintiffs at the applicable federal minimum wage. These problems persisted before and after Durrett Cheese’s August 2007 bankruptcy filing.

Indeed, in many workweeks in August, September, and October 2007, Durrett Cheese grossly underpaid the plaintiffs. In some workweeks during this time period, the plaintiffs were not paid at all, and some plaintiffs worked for more than a month during this time period without being paid. The plaintiffs regularly requested their unpaid wages during this period, often approaching Ramirez in groups to inquire about their pay. Acting through Ramirez, Durrett Cheese either postponed pay days or simply refused to pay the plaintiffs for the work they had performed. Ramirez convinced the plaintiffs to continue working by telling them that they would not receive their back pay if they quit, and that they would receive more back pay if they worked at higher production levels.

The tension over pay and working conditions came to a head in October 2007. On Friday, October 19, 2007, the plaintiffs made repeated requests to Ramirez for several weeks of back pay. Ramirez informed the plaintiffs that they would not be paid until the following Monday. On hearing this news, the plaintiffs met to plan a collective action to protest the continued non-payment of wages.

The following Monday, October 22, 2007, during the usual mid-morning break, the plaintiffs assembled in the Durrett Cheese break room and again requested their overdue pay from Ramirez. The plaintiffs were told by Ramirez that no checks would be distributed until defendant Durrett arrived, and, until that time, the plaintiffs could either return to work or leave for good (and risk never receiving their back pay). The plaintiffs refused to return to work, stating that they would only do so when they received their wages. In response, Ramirez fired the plaintiffs and ordered them off company property. The plaintiffs informed Ramirez that they would not leave the break room until they received their wages.

As the plaintiffs continued to wait in the break room, Ramirez conferred with Ron Girts, another supervisor at Durrett Cheese, and defendant Durrett. Defendant Durrett ordered Girts and Ramirez to call the Coffee County Sheriff’s Department. Officer-defendants Jones, Partin, and Barker responded to the call and headed to the Durrett Cheese factory. When the officers arrived, Ramirez, Girts, and the plaintiffs informed the officers that management and the employees were engaged in a dispute over unpaid wages. The officers noted the nature of the dispute in their incident report.

The plaintiffs allege that, at this point, the officers with the Coffee County Sheriff’s Department and the supervisors employed by Durrett Cheese began working together to defeat the plaintiffs’ wage complaints. For instance, a supervisor, either Ramirez or Girts, informed the officers that the plaintiffs were undocumented immigrants and should, therefore, be reported to Immigration and Customs Enforcement (ICE). The officers were also provided with paperwork from Durrett Cheese to assist in reporting the plaintiffs.

The officers told the plaintiffs that, if they did not leave the Durrett Cheese premises, they would be arrested and taken to the Coffee County jail. After the plaintiffs expressed their intent to remain in the break room, the officers arrested the plaintiffs and transported them, via Sheriff’s Department van, to the Coffee County jail. The officers’ supervisors, defendants Freeman and Graves, were advised of the situation as it unfolded and approved of the arrests. During the arrests, the officers, along with Ramirez, laughed at the plaintiffs, referred to the plaintiffs’ race and national origin, and made statements about sending the plaintiffs “back to Mexico.” In total, the entire work stoppage incident lasted less than two hours, and, at all times, it was peaceful and entirely confined to the Durrett Cheese break room.

At the Coffee County jail, the plaintiffs were booked on charges of trespassing and were detained. Over the course of the day on October 22, the plaintiffs were separated from their families and kept in the dark about what would happen to them. The plaintiffs slept on mattresses in a crowded jail cell and were denied free access to restroom facilities. The next day, October 23, the Coffee County District Attorney dropped all charges against the plaintiffs.

The plaintiffs allege that, while they were detained, defendants Graves and Freeman consulted with supervisors at Durrett Cheese as to how to proceed, in light of the ongoing labor dispute between Durrett Cheese and the plaintiffs. Durrett Cheese and defendant Graves agreed that, regardless of the charges being dropped, the plaintiffs would remain at the Coffee County jail and that the plaintiffs would be reported to ICE. Shortly after this conversation, defendant Freeman contacted ICE to report the plaintiffs as suspected undocumented immigrants. On October 24, agents from ICE arrived at the Coffee County jail, and, at the behest of the County Defendants, transported the plaintiffs to a detention center in Nashville, Tennessee, where the plaintiffs, very fearful of what would happen to them and their families, were interrogated for several hours before their attorney was able to secure their release.”

Finding the Plaintiffs’ 215 claim of FLSA Retaliation to be a viable one, at this stage in the litigation, the Court explained:

“As noted above, the plaintiffs allege that the County Defendants violated Section 215(a)(3) of the FLSA. In relevant part, that provision states: “it shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215(a) (3). The Sixth Circuit has consistently interpreted an informal complaint to management regarding working conditions to constitute a “filed complaint” under Section 215(a)(3). Moore v. Freeman, 355 F.3d 558, 562 (6th 2004); EEOC v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir.1992). While there does not appear to be a wealth of law on this subject from the Sixth Circuit, it appears clear that, given the broad language of this provision, entities other than an individual’s employer can violate the FLSA. See e.g. Centeno-Bernuy v. Perry, 302 F.Supp.2d 128, 135 (W.D.N.Y.2003); Meek v. United States, 136 F.2d 679, 679-80 (6th Cir.1943).

In asserting that the plaintiffs’ FLSA claim should be dismissed as to them, the County Defendants argue that the plaintiffs’ Complaint does not establish the prima facie case for retaliation under the FLSA, and, even if it did, the claim could not survive the well-known McDonnell Douglas burden-shifting analysis that is typically applied in employment discrimination and retaliation suits, including claims brought under the FLSA. (Docket No. 46 at 4, citing Williams v. GM., 187 F.3d 553, 568 (6th Cir.1999)).

This is not a proper argument at this stage in the proceedings. In employment discrimination and retaliation suits, the plaintiff is not required, at the pleading stage, to demonstrate a prima facie case or to survive McDonnell Douglas burden shifting. See Swierkiewicz, 534 U.S. at 508; EEOC v. FPM Group, Ltd., 2009 WL 3088808, *6 (E.D.Tenn. Sept.28, 2009). Rather, as discussed above, in order to survive a motion to dismiss, the plaintiff’s Complaint need only outline a “facially plausible” claim for relief.

The plaintiffs have met that burden here. Again, the language of the FLSA provision at issue is very broad, prohibiting “any person” from “discriminat [ing]” against “any employee,” because that employee has filed a covered workplace complaint. 29 U.S.C. § 215(a)(3). Further, the County Defendants recognize that retaliatory reporting of an employee to immigration authorities could constitute “discrimination” under this provision. (Docket No. 46 at 6; see also Singh v. Jutla, 214 F.Supp.2d 1056, 1062 (N.D.Cal.2002) (denying motion to dismiss FLSA retaliation claims where allegations centered on an employer’s reporting of the employee to immigration authorities in retaliation for FLSA protected conduct); Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir.1977) (equating FLSA discrimination to “black listing” and other actions that prevent an employee from gaining future employment.)

Providing significant factual support, the plaintiffs have alleged that the County Defendants, working in concert with the Durrent Defendants, arrested the plaintiffs and then reported the plaintiffs to ICE because of the plaintiffs’ complaints about pay. While the County Defendants claim that the plaintiffs have only alleged a racial or ethnic animus as motivation for the defendants’ conduct here, that is simply not the case. (Docket No. 46 at 6.) The Complaint contains numerous allegations, backed by factual support, that the County Defendants reported the plaintiffs to ICE, at least in part, because the plaintiffs had made a complaint about pay.

The plaintiffs allege that, shortly after the officers arrived at the break room, they were advised that this was a dispute about pay. Then, “Ramirez and/or Girts supplied Defendants Jones, Partin, and Barker with paperwork to assist the Coffee County Defendants in reporting Plaintiffs to ICE.” (Docket No. 1 at 15.) There is no indication from the Complaint that Jones, Partin and Barker attempted to mediate or resolve the labor dispute; rather, it is clear from the Complaint that, throughout the entire process, the County Defendants simply imposed the will of the Durrett Defendants, which was to permanently remove the plaintiffs from the premises (and, perhaps, the country) because the plaintiffs had complained about pay. Indeed, the Complaint alleges that, after the charges were dropped, defendant Graves “consult[ed] with the Durrett Defendants and with full awareness that he was unlawfully intervening in a labor dispute, defendant Graves instructed defendant Freeman to call ICE to report Plaintiffs as suspected undocumented immigrants. Defendant Freeman did so on or about October 22 or October 23, 2007.” (Id. at 16.)

Clearly, accepting the plaintiffs’ allegations as true and drawing all reasonable inferences in the plaintiffs’ favor, the plaintiffs have sufficiently alleged that the County Defendants violated the FLSA. The plaintiffs allege, with specific factual support, that, in response to the plaintiffs’ complaint about pay, the County Defendants not only had the plaintiffs arrested but worked in concert with the Durrett Defendants to have the plaintiffs reported to ICE. As to this claim, the County Defendants’ Motion to Dismiss, which is premised on the notion that the FLSA claim lacks factual support, will be denied.

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E.D.La.: FLSA Defendants Not Entitled To Discover Plaintiffs’ Social Security Numbers Because Irrelevant; Need To Comply With Tax Laws Insufficient Reason

Baca v. Brother’s Fried Chicken

Before the Court were: (1) the motion of the defendants, Omar Hamdan, Fatmah Hamdan, Alberta, Inc., FHH Properties, LLC, and Alberta Management, LLC, pursuant to Fed.R.Civ.P. 12(e), for a more definite statement; and (2) the motion of the plaintiffs, Angela Mericia Baca and Abigail Analqueto, for a protective order limiting inquiries with in terrorem effect. The motions were related. The defendants’ sought an order requiring the plaintiffs to provide Social Security numbers and addresses. The plaintiffs sought a protective order barring the defendants from inquiring into this information. The Court granted Plaintiffs’ Motion and denied Defendants’.

The Court noted, “[i]n Topo v. Dhir, 210 F.R.D. 76 (S.D.N.Y.2002), the court stated:Courts have generally recognized the in terrorem effect of inquiring into a party’s immigration status when irrelevant to any material claim. In particular, courts have noted that allowing parties to inquire about the immigration status of other parties, when not relevant, would present a danger of intimidating that would inhibit plaintiffs in pursuing their rights.”

The Court, in granting Plaintiffs’ Motion for a Protective Order and denying Defendants’ Motion discussed the 5th Circuit case In re Reyes, 814 F.2d 168,170 (5th Cir.1987) paraphrasing, “[t]here is much stronger justification in this case [for a writ of mandamus] where there is no possible relevance and the discovery could place in jeopardy unrelated personal status matters.” Id. at 170-71. “Inasmuch as the protections provided by the FLSA apply to undocumented aliens, the plaintiffs’ immigration status, Social Security numbers and addresses are not relevant. In Agusiegbe v. Petroleum Associates of Lafayette, 486 So.2d, 314 (La.App. 3rd 1986), the defendant contended that the plaintiff falsely represented himself to be employable as a U.S. citizen. The court held that the LWPA applied to all employees, regardless of their nationality. Id. at 316. The information sought by defendants is not relevant to plaintiffs’ LWPA claims.

The defendants urge that the information is required to permit them to comply with the provisions of the Internal Revenue Code for the completion of Forms 1099 and W-2. The burden of reporting payroll information rests with the employer. The defendants have not demonstrated why they could not have obtained this information when the plaintiffs first began working for them. The plaintiffs are not required to provide it to defendants in connection with the pending FLSA and LWPA claims.”

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S.D.N.Y.: Undocumented Immigrant FLSA Plaintiffs Failed To Plead Civil RICO Claim Based On Defendants’ Wage Violations

Nichols v. Mahoney

In this case, the Plaintiffs pled Civil RICO in addition to typical FLSA violations, and other relatively unique claims under the Sherman Act and the Donnelly Act. Specifically, the Plaintiffs claimed that the Defendants regularly paid substandard wages, and the practice resulted from their employment of undocumented immigrants in violation of federal laws. In dismissing the portion of Plaintiffs’ claims pertaining to Civil RICO, the Court found that the Plaintiffs had not properly alleged proximate cause of Defendants’ pattern of criminal activity and their damages due to wage violations.

“In evaluating whether the plaintiffs have adequately alleged proximate cause in this case, the Court focuses on the proposed amended complaint, because it adequately alleges the commission of a pattern of racketeering activity, to wit: two or more violations of the harboring statute. The question to be answered is whether the plaintiffs’ injury-the depression of their wages-was proximately cause by defendants’ hiding their illegal alien employees from the Government. The answer to that question is no.

There is no direct relationship between the harboring of illegal aliens and the plaintiffs’ depressed wages. Indeed, plaintiffs do not so allege. Rather, they contend that they were paid below-market wages because the defendants knowingly hired undocumented workers, who would and did work for wages that were lower than the prevailing rate. That act-the knowing hiring of illegal aliens-is specifically alleged to be the proximate cause of plaintiffs’ lower wages. (Am.Compl.¶¶ 45, 94, 109, 119, 128, 132.) As explained above, that act is not a RICO predicate act.

If plaintiffs had managed to plead that defendants knowingly hired 10 or more illegal aliens who defendants knew had been “brought into” the country-that is, if plaintiffs had successfully pled a violation of section 274(a)(3), which is a RICO predicate act-their proposed amended complaint might well plead proximate cause, as the Second Circuit found in analogous circumstances in Commercial Cleaning, 271 F.3d at 381-385. Of course, Commercial Cleaning is a pre-Anza case, so if plaintiffs had managed to plead that defendants knew some of their illegal employees had been “brought into” the country by others, this Court would have to consider whether Commercial Cleaning remains good law on this point. But plaintiffs’ failure to allege the requisite specific facts moots any such inquiry.

Because hiring illegal aliens without knowing they were “brought in” is not racketeering activity, plaintiffs’ allegation that hiring illegal aliens depressed wages-a correlation long recognized by courts, including the Supreme Court, see, e.g., DeCanas v. Bica, 424 U.S. 351, 356-357 (1976)-does not satisfy the requirement that plaintiffs plead injury caused by a pattern of racketeering activity. To clear that hurdle, plaintiffs need to plead facts tending to show that defendants’ harboring of illegal aliens proximately caused the drop in their wages. This they have not done.

Reading the plaintiffs’ proposed amended complaint in the most favorable light, they do allege that the defendants were able to keep their “scheme” to employ illegal aliens going by hiding the aliens from the Government-by “harboring” them. (See Am. Compl. ¶¶ 25-45, 64, 67-73, 76.) But the fact that harboring may have allowed the alleged injury to persist for a longer period does not mean that harboring caused the injury.

Furthermore, that the only allegation in the amended complaint connecting harboring and wages concerns the duration of the harm rather than its cause underscores another critical point. “The key reasons for requiring direct causation include avoiding unworkable difficulties in ascertaining what amount of the plaintiff’s injury was caused by the defendant’s wrongful action as opposed to other external factors.” First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 770 (2d Cir.1994). Any effort to quantify how much of plaintiffs’ depressed wages was caused by the harboring of illegal aliens, as opposed to hiring them or some other factor at work in the marketplace, would be even more inherently speculative than the proceeding anticipated (and condemned) by the Supreme Court in Anza.

Finally, because harboring is a direct affront to the Government, there is no need for private attorneys general like plaintiffs to bring damages actions in order to redress it. Just as the State of New York could be expected to pursue a corporation that was failing to pay state income tax, the Government can be expected to vindicate the laws against hiding aliens from the Government. This is not to say that proximate cause will be lacking every time a governmental entity has an interest in vindicating its laws. Indeed, any such result would effectively wipe the civil RICO statute off the books, since every RICO violation is predicated on a violation of some federal criminal statute-a violation that the United States, a “victim” whenever its laws are violated, has an incentive to remedy. However, in this case, where there is no direct or obvious connection between the racketeering activity alleged (harboring) and the harm to the plaintiffs (depressed wages), the fact that the direct victim of the harboring has the incentive to redress the harm (by capturing and deporting the aliens and by prosecuting the harboring employer) fatally undermines any contention that these plaintiffs have suffered injury by virtue of the alleged racketeering activity.

The amended complaint thus fails to state a claim under 18 U.S.C. § 1962(c). Because plaintiffs fails to plead any RICO violation, they also fail to plead any violation of 18 U.S.C. § 1962(d), the RICO conspiracy statute. All three RICO counts-Counts I, II and III-are dismissed.”

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E.D.La.: FLSA Plaintiffs’ Immigration Status Not Discoverable

David v. Signal Intern., LLC

Among their claims in this case, the undocumented immigrant Plaintiffs alleged various FLSA violations. The Defendants moved to compel information pertaining to Plaintiffs’ immigration status and the Court granted Plaintiffs request for a protective order, citing the in terrorem effect such a disclosures would likely have. The Court cited the other Courts who had held the same way and discussed the issue at great length.

The Defendants addressed the relevance of the information sought and contended that plaintiffs must demonstrate that the issues are not relevant to any claim or issue in the case, including plaintiffs’ civil rights or tort claims. Plaintiffs contended that the damage and prejudice which would result if discovery into their current immigration status were permitted far outweighs its probative value with respect to their discrimination and tort claims.

In discussing the issue the Court stated, “[t]his Court finds plaintiffs’ argument persuasive. Even if current immigration status were relevant to plaintiffs race/national origin discrimination, contract and tort claims, discovery of such information would have an intimidating effect on an employee’s willingness to assert his workplace rights. Plaintiffs’ claims and allegations of fact supporting same in the case at bar find no parallel in reported federal decisions reviewed by the undersigned. See, e.g., Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir.2004) (“[W]ere we to direct district courts to grant discovery requests for information related to immigration status in every case involving national origin discrimination under Title VII, countless acts of illegal and reprehensible conduct would go unreported.”).

As stated above, this is also an action for unpaid wages and overtime for work actually performed for Signal. Courts have recognized the in terrorem effect of inquiring into a party’s immigration status and authorization to work in this country when irrelevant to any material claim because it presents a “danger of intimidation [that] would inhibit plaintiffs in pursuing their rights.” Here, plaintiffs’ current immigration status is a collateral issue. The protective order becomes necessary as “[i]t is entirely likely that any undocumented [litigant] forced to produce documents related to his or her immigration status will withdraw from the suit rather than produce such documents and face … potential deportation.”
Liu v. Donna Karan International, Inc., 207 F.Supp.2d 191, 193 (S.D.N.Y.2002) (citations omitted).
Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y.2002) (quoting Flores v. Albertsons Inc., 2002 WL 1163623, *6 (C. D.Cal. Apr. 9, 2002)); see also EEOC v. First Wireless Group, Inc., 225 F.R.D. 404 (E.D.N.Y.2004) (good cause shown for protective order where disclosure of immigration status would cause embarrassment, potential criminal charges, or deportation if status was discovered to be illegal).”

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E.D.N.Y.: FLSA Plaintiff’s Immigration Information Not Discoverable Because Irrelevant

Trejos v. Edita’s Bar and Restaurant, Inc.

In this case, the Defendant’s moved to compel Plaintiffs to answer questions at deposition regarding their immigration status. The primary issue substantively before the Court was whether Plaintiffs were employees entitled to FLSA coverage or independent contactors, and therefore, outside of the FLSA’s coverage. Initially, the Court granted Defendant’s Motion to Compel this testimony. On Plaintiffs’ Motion for Reconsideration however, the Court reversed itself, vacating its prior Order and, following well-settled law found this information is undiscoverable and irrelevant stating:

“Plaintiffs argue that the questions are not relevant to the issue of whether plaintiffs were employees of defendants for purposes of the Fair Labor Standards Act (the “FLSA”), and that the questions should be precluded in any event because of their in terrorem effect. Defendants respond that the information is necessary for a determination of whether certain plaintiffs were defendants’ employees or, as defendants allege, independent contractors under the FLSA.

The information-whether plaintiffs had green cards or working papers-is not relevant to the question of whether plaintiffs are employees under the FLSA. First, as even defendants acknowledge in their opposition to plaintiffs’ motion, federal courts have consistently recognized that even undocumented workers are entitled to the FLSA’s protections. See, e.g., Flores v. Amignon, 233 F.Supp.2d 462, 463 (E.D.N.Y.2002) (collecting cases). Second, in a case where, as here, defendants contend that plaintiffs were independent contractors and not employees subject to the FLSA, the Second Circuit applied an “economic reality” test, which considers the following factors:

(1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer’s business.

Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir.1988); see also Schwind v. EW & Assocs., Inc., 357 F.Supp.2d 691, 700-02 (S.D.N.Y.2005) (applying Brock and concluding that plaintiff was an employee, not an independent contractor); Lee v. ABC Carpet & Home, 186 F.Supp.2d 447, 453-57 (S.D.N.Y.2002) (applying the five factors outlined in Brock to determine whether a worker was an employee or an independent contractor under the FLSA); McGuiggan v. CPC Int’l, Inc., 84 F.Supp.2d 470, 479 (S.D.N.Y.2000). Although these factors are not exclusive, and a court must consider the totality of the circumstances, Brock, 840 F.2d at 1059, whether or not plaintiffs had green cards or working papers is simply not relevant when applying the Brock test to determine whether plaintiffs are employees under the FLSA. Indeed, defendants are unable to cite a single case in which a court held that a plaintiff’s immigration status, or whether the plaintiff possessed a green card or working papers, was relevant to the viability of the plaintiff’s FLSA claim.

Although defendants argue in their opposition that the discovery they seek will establish that plaintiffs sought to avoid employee status, the subjective intent of the parties in forming the employment relationship has little to no significance in determining whether a plaintiff is an independent contractor or employee. Schwind, 357 F.Supp.2d at 702 (finding that plaintiff was an employee for purposes of the FLSA, even though both parties treated plaintiff as an independent contractor). See also Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 302, 105 S.Ct. 1953, 1962 (1985) (concluding that workers may be deemed employees under the FLSA, even though the workers considered themselves volunteers); Brock, 840 F.2d at 1059 (noting that an “employer’s self-serving label of workers as independent contractors is not controlling”). One district court explicitly rejected an argument similar to the one defendants make here, noting that “neither the subjective intent of the worker in forming the employment relationship nor the label affixed by the putative employer controls the question whether a worker is an employee under the FLSA.” Montoya v. S. C.C.P. Painting Contractors, Inc., 589 F.Supp.2d 569, 577-78 (D.Md.2008) (citing Tony & Susan Alamo Found., 471 U.S. 290, 105 S.Ct.1953). While defendants correctly point out that Montoya involved a motion for summary judgment and not a discovery motion, both Flores and Liu v. Donna Karan Int’l, Inc., 207 F.Supp.2d 191, 192 (S.D.N.Y.2002), held that discovery of plaintiff’s immigration status should be precluded. I find these authorities persuasive and conclude that defendants’ contention of their need for the information is without merit.”

Recognizing the intimating effect such disclosures could and do have on FLSA Plaintiffs, the Court further noted: “even if the information sought were somehow relevant, the in terrorem effect of the questions defendants seek to press outweighs the need for disclosure. See Flores, 233 F.Supp.2d at 464-65; Liu, 207 F.Supp.2d at 192-93. Indeed, despite my efforts to permit only narrow discovery of whether plaintiffs had green cards or working papers, defendants have attempted to obtain information concerning plaintiffs’ immigration status through other questions. See Pl. Letter dated Feb. 17, 2009 p. 4 (citing the deposition of plaintiff Diana Trejos at 56).

For these reasons, plaintiffs’ motion for reconsideration is granted. Defendants are precluded from asking plaintiffs whether they had green cards or working papers at all future depositions.”

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