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8th Cir.: Unauthorized Aliens May Sue Under the FLSA to Recover Damages for Work Performed
Lucas v. Jerusalem Cafe, LLC
Following a jury verdict, in favor of the plaintiff-employees, the defendant-employer appealed. As discussed here, the defendant-employer contended that plaintiffs, undocumented (or “illegal”) aliens lacked standing under the FLSA to assert a claim for unpaid wages. Reasoning that unauthorized aliens fit within the definition, scope and purpose of the FLSA, the Eighth Circuit affirmed the jury’s verdict in favor of the workers, and held that undocumented aliens are entitled to the FLSA’s protections regarding work already performed.
Discussing judicial precedent the Eighth Circuit explained:
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; 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. As Justice Oliver Wendell Holmes explained in United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037 (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, 72 S.Ct. 571, 96 L.Ed. 833 (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.”).
The court then went on to analyze the plain language 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, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (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 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, then-Senator 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, 101 S.Ct. 1784, 68 L.Ed.2d 114 (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, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)). Because the FLSA by its plain 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.
Rejecting the defendant’s argument that the IRCA and Hoffman Plastic supported a conclusion that such workers were not entitled to the FLSA’s statutory protections, the court reasoned:
The employers point to the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (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, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967).
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, 122 S.Ct. 1275. 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, 122 S.Ct. 1275. 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, 122 S.Ct. 1275 (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, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984), that the NLRA applies to the actual employment of unauthorized aliens. See Hoffman, 535 U.S. at 151–52, 122 S.Ct. 1275;Sure–Tan, 467 U.S. at 893–94, 104 S.Ct. 2803.
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 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.
The court also noted that the Eleventh Circuit had recently reiterated the undocumented aliens were protected by the FLSA, further supporting its conclusion regarding same:
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.
The court found further support in the fact that the DOL has long taken the position that undocumented aliens are covered under the FLSA:
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, 104 S.Ct. 2803.
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.
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, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see also Godinez–Arroyo v. Mukasey, 540 F.3d 848, 850 (8th Cir.2008).
Finally the court recognized Congressional intent also supported its conclusion:
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, 104 S.Ct. 2803. 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, 96 S.Ct. 933, 47 L.Ed.2d 43 (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, 179 L.Ed.2d 1080 (2011), and (2) “our steadfast canons of statutory construction,” United States v. Johnson, 703 F.3d 464, 468 (8th Cir.2013), confirm this point.
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, 2 L.Ed. 60 (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.
As such, the court held 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.”
Click Lucas v. Jerusalem Cafe, LLC to read the entire opinion. Click DOL Amicus Brief to read the Secretary of Labor’s Amicus Curiae Brief, submitted in support of the Plaintiffs-Appellees.
Recent Conditional Certification Decisions of Interest
Anyone who has ever moved for or opposed a motion for conditional certification (i.e. a “Stage 1” motion) of a collective action is likely familiar with the common defense tactic whereby a defendant asserts that the named plaintiff and members of the putative class are not similarly situated. Typically a defendant argues that individualized issues pertaining to the claims of the named plaintiff(s) (and members within the putative class) render the case ill-suited for class/collective treatment. As discussed below, three recent decisions discuss three separate issues related to this analysis. In the first, a court held that a pro se plaintiff could not adequately serve the interests of the putative class and denied conditional certification. However, in the second and third cases discussed below, the courts rejected the defendants’ contentions that: (1) an undocumented (“illegal”) immigrant was ill-suited to serve as a representative plaintiff; and (2) issues regarding whether specific putative class members signed binding arbitration agreements relating to the issues raised by the named-plaintiff were not properly raised at stage 1.
Pro Se Plaintiff Inadequate Representative for Collective Action
Koch v. CHS Inc.
In the first case, the pro se plaintiff (apparently fairly savvy) moved for conditional certification. Denying the motion, the court held that a pro se plaintiff cannot pursue their claims in a collective action for lack of adequacy of representation. Specifically, the court explained:
The issue of whether a pro se plaintiff can sue on behalf of other members in a collective action is one of adequacy of representation. Determining adequate representation is typically based on a two-part inquiry: “First, the named representatives must appear able to prosecute the action vigorously through qualified counsel, and second, the representatives must not have antagonistic or conflicting interests with the unnamed members of the class.” Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978). Courts have generally concluded that a pro se plaintiff cannot pursue claims on behalf of others in a representative capacity. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir.2008); see also Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997) (“While a non-attorney may appear pro se on his ow n behalf, he has no authority to appear as an attorney for others than himself.”); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987) (holding that a pro se litigant may not appear as an attorney for others). Here, because Koch is a pro se litigant, he cannot pursue claims on behalf of other CHS employees in a representative capacity.
The rule holds true for pro se plaintiffs seeking to bring collective action suits under the F LSA. Morgovsky v. AdBrite, Inc. ., No. C10–05143–SBA, 2012 WL 1595105 *4 (N.D.Cal. May 4, 2012) (denying pro se plaintiff’s motion to bring a collective action under the FLSA and dismissing collective action claims); Spivey v. Sprint/United Mgt. Co., No. 04–2285–JWL, 2004 WL 3048840 (D.Kan. Dec.30, 2004) (holding that a claim under 29 U.S.C. § 216(b) cannot be brought by a pro se plaintiff).
Accordingly, the Court agrees with CHS that Koch, because he proceeds in the litigation pro se, cannot represent the class members on whose behalf he purports to bring suit. Therefore, proceeding with the litigation as a collective action is not permitted pursuant to 29 U.S.C. § 216(b). The motion will be denied.
Click Koch v. CHS Inc. to read the entire Memorandum Decision and Order.
Named-Plaintiff’s Immigration Status Has No Bearing on Similarly Situated Analysis
Torres v. Cache Cache, Ltd.
In the second case of interest, arising from alleged tip pool violations at defendant’s restaurant, the defendant opposed conditional certification, in part, based on the fact that the named-plaintiff was allegedly an undocumented immigrant. The court rejected this notion, citing well-established authority that an FLSA plaintiff’s immigration status is irrelevant to a claim inasmuch thereunder, inasmuch as same seeks payment for work already performed. Discussing this issue the court reasoned:
Finally, in an apparent attempt to distinguish Plaintiff from other proposed collective action members, Defendants note his status as an illegal immigrant and involvement in other similar FLSA lawsuits. Neither of these issues, however, is likely to provide Defendants with a valid defense that is unique to Plaintiff. First, there are a number of cases finding that evidence of immigration status has no relevance in an FLSA action. See e.g. Reyes v. Snowcap Creamery, Inc., 2012 WL 4888476 at *2 (D.Colo. Oct.15, 2012) (recognizing that “weight of authority clearly holds that a plaintiff’s immigration status is irrelevant in an FLSA action” and citing supporting authority). It is also questionable whether Defendants will be able to introduce evidence of other lawsuits involving Plaintiff. See Van Deelen v. Johnson, 2008 WL 4683022 at *2 (D.Kan. Oct.22, 2008) (evidence of plaintiff’s prior lawsuits cannot be admitted for purpose of proving that plaintiff is litigious but may be admissible for other purposes).
Click Torres v. Cache Cache, Ltd. to read the entire Order.
Whether Putative Class Members’ Claims Are Subject to Arbitration is an Issue Reserved for Stage 2
Hernandez v. Immortal Rise, Inc.
In the final decision, the court had before it the Report and Recommendation of the magistrate judge recommending conditional certification. As it had in its opposition to the underlying motion, the defendant argued that members of the putative class who had previously signed agreements to arbitrate their FLSA claims, were not similarly situated to the plaintiff and the remainder of the putative class. As such, the defendant argued such putative class members should be excluded from receiving notice of their right to join the case by opting in. Rejecting this contention, the court held that the issue of whether (and who) may have signed arbitration agreements, is an issue reserved for Stage 2 (decertification) analysis, and is not properly addressed at the conditional certification stage:
Next, defendants argue that the proposed class should be limited to cashiers and those who had not signed arbitration agreements, excluding grocery packers and delivery workers, whom defendants never employed, and employees subject to arbitration agreements. However, these are issues of fact that should be determined during discovery rather than at this preliminary stage. See D’Antuono v. C & G of Groton, Inc., No. 11–cv–33, 2011 U.S. Dist. LEXIS 135402, at *12–13 (D.Conn. Nov. 23, 2011) (holding that the enforceability of arbitration agreements should not be determined during conditional class certification); Lujan v. Cabana Mgmt., No. 10–cv–755, 2011 U.S. Dist. LEXIS 9542, at *23–24, 2011 WL 317984 (E.D.N.Y. Feb. 1, 2011) (quoting Realite v. Ark Rests. Corp., 7 F.Supp.2d 303, 307 (S.D.N.Y.1998)) (holding that defendants’ contention that its restaurants constituted separate entities raised a contested issue of fact, and was therefore not a basis for denying conditional class certification). Thus, Judge Bloom correctly found that the proposed class should not be limited as defendants propose.
Click Hernandez v. Immortal Rise, Inc. to read the entire Order.
E.D.N.Y.: Notice Language Advising Undocumented Immigrants That Their Immigration Status is Irrelevant Approved
Enriquez v. Cherry Hill Market Corp.
This case was before the court on the plaintiff’s motion for conditional certification. As discussed here, it is of interest, because of the language the court approved with regard to the Notice to be sent to the class. Specifically, among other things, the court ruled that a warning to potential opt-ins that they may have to participate in the case was unduly chilling and further held that it was appropriate to notify putative class members that their immigration status is irrelevant to their right to recover under the FLSA.
Discussing the latter issue, the court explained:
“The proposed notice informs potential plaintiffs, ‘You have a right to participate in this action even if you are an undocumented alien or if you were paid in cash.’ Not. of Motion, Ex. 3. The plaintiffs states that this information is necessary to reassure potential plaintiffs, many of whom will be ‘foreign-born workers who have little command of English [and] are probably unfamiliar with the American legal system.’ Reply Mem. of Law at 7. The defendants respond that it implies that there employment practices violated immigration and/or labor laws.”
Although the court toned down the language the plaintiff had proposed, ultimately it approved language clarifying that the putative class members’ immigration status was/is irrelevant:
“The Court agrees that the language appropriately corrects a possible assumption that the FLSA does not cover illegal immigrants or workers paid in cash. Its size and placement, however, are unnecessarily inflammatory. Plaintiffs are ordered to remove the language and, instead, add to the end of paragraph beginning “You may be owed payment …” that potential plaintiffs may be owed payment even if they were paid in cash and regardless of their immigration status, or words to that effect.”
Click Enriquez v. Cherry Hill Market Corp. to read the entire Memorandum and Order.
E.D.N.Y.: Defendant Precluded From Offering Evidence of Plaintiffs’ Immigration Status at Trial
Solis v. Cindy’s Total Care, Inc.
This case, brought by the Secretary of Labor, was before the court on the Secretary’s Motion in Limine to exclude any reference to plaintiffs’ immigration status at trial, due to irrelevance. The underlying case concerned nails techs who worked at defendant’s nail salon, presumably at least some of whom were undocumented workers. The court agreed with the Secretary that such information was irrelevant to the issues at bar- namely whether defendant had failed to properly compensate plaintiffs for their previous overtime work.
Framing the issue, the court explained:
“At issue here is a motion in limine brought by the Secretary, seeking to preclude Cindy’s from introducing at trial evidence of the immigration status or national origin of any of Cindy’s employees and from questioning employee witnesses as to these subjects. In its answer, Cindy’s had identified the immigration status of its employees as an affirmative defense. Cindy’s stated that employees’ immigration status “is important for future wages” and that claims as to such wages therefore “are barred in this case .” At an October 13, 2011 pretrial conference, counsel for Cindy’s reiterated its intention to elicit evidence of the immigration status and national origin of one or more employees whose wages are at issue.”
Granting plaintiffs’ motion, the court reasoned:
“In this case, an employee’s immigration status, or national origin, is clearly irrelevant to a claim for back pay for overtime wages under the FLSA. By its terms, the FLSA applies to “any individual” employed by an employer, as the term “employer” is defined by the Act. 29 U.S.C. § 203(e)(1). The Act contains no exception or exclusion for persons who are not U.S. citizens or who are in this country illegally.
For this reason, the courts to consider this issue have uniformly held that any person, regardless of his or her immigration status, who is employed by an employer, may pursue an action under the Act for work actually performed. See, e.g., Corona v. Adriatic Italian Restaurant & Pizzeria, 2010 WL 675702, at *1 (S.D.N.Y. Feb.23, 2010) (citing Patel v. Quality Inn South, 846 F.2d 700, 702 (11th Cir.1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 182 (1989)). Indeed, cases have held that employees’ immigration status or national origin is not even a suitable area for pretrial discovery. See, e . g., Liu v. Donna Karan Int’l, Inc., 207 F.Supp.2d 191, 192 (S.D.N.Y.2002) ( “plaintiff-workers’ immigration status in cases seeking unpaid wages brought under the FLSA” held “undiscoverable”); Renfigo v. Erevos Enter. Inc., 2007 WL 894376, *2 (S.D.N.Y. Mar.20, 2008) (plaintiff’s “immigration status and authority to work is a collateral issue” and not discoverable).
In its answer, Cindy’s asserted that employees’ immigration status might be relevant in an action seeking to recover “future wages.” There is no occasion to address that issue here. The Secretary has stated clearly that that the monetary relief she seeks to obtain on behalf of Cindy’s employees in this case is exclusively retrospective, in the form of back wages owed to current or former employees as a result of Cindy’s alleged failure to pay them overtime wages for the overtime hours that they worked.
This is also not a case in which an employee’s immigration status may be relevant to impeachment. Where an employee witness had falsely attested to United States citizenship or had fabricated naturalization documents, evidence of the employee’s illegal immigration status might well be relevant to credibility. However, the Court would still have to determine whether the probative value of such evidence was substantially outweighed by the risk of unfair prejudice or confusion, see Fed.R.Evid. 403, including the potential chilling, in terrorem effect on undocumented alien employees who might be deterred from coming forward to report FLSA infractions or to testify at trial. See, e.g., Flores v. Amigon, 233 F.Supp.2d 462, 464–65 (E.D.N.Y.2002). Here, however, at the October 13, 2011 hearing, Cindy’s expressly disclaimed an intent to offer immigration status as evidence of impeachment. As a result, no such impeachment evidence will be permitted at trial.”
Click Solis v. Cindy’s Total Care, Inc. to read the entire Opinion and Order.
D.Mass.: FLSA Defendant Not Entitled to Discovery of Plaintiff’s Immigration Status
Jin-Ming Lin v. Chinatown Restaurant Corp.
This case was before the court on the parties cross-motions to compel discovery. It appears that, as often occurs, the defendant was all too happy to employ plaintiff, an undocumented immigrant, prior to plaintiff’s filing of his FLSA case. However, once the FLSA case was filed, the employer sought to fight the FLSA claim on the basis of plaintiff’s immigration status. As discussed here, the court denied defendant’s motion to compel discovery of plaintiff’s immigration status. Apparently this was an issue of first impression in the First Circuit, as the court noted that no prior court within the First Circuit had decided this hot-button issue. While the court reached the same conclusion as most- that such information was irrelevant, because FLSA rights are absolute, regardless of immigration status- it noted that it’s reasoning was divergent from the majority of courts.
Denying the defendant’s motion and noting that such information was irrelevant to a case under the FLSA, the court reasoned:
“Nonetheless, while I find the reasoning advanced by other courts in holding that illegal aliens may recover for unpaid wages under the FLSA to be insufficient, I come to the same ultimate conclusion for a different reason that has not, so far as I know, yet been relied on. Awards for back pay under the NLRA, at issue in Hoffman, are discretionary. See 29 U.S.C. § 160(c) (Courts may order “reinstatement of employees with or without back pay ….”); see also NLRB v. Harding Glass Co., 500 F.3d 1, 8 (1st Cir.2007) (NLRB has “broad remedial powers” under 29 U.S.C. § 160(c) including “discretion both to determine that back pay is appropriate … and to compute the back pay amount.”). As Hoffman recognized, agencies are required to exercise their discretion in light of other federal policies. 535 U.S. at 146 (“In devising remedies for unfair labor practices, the Board is obliged to take into account [other] equally important Congressional objective[s].”) (internal quotation omitted). This basic tenet of administrative law is what first prompted the Court in Hoffman to look at federal immigration policy as a limit on the NLRB’s authority and discretion to award back pay in the circumstances. See id. at 143-44.
In contrast, awards for unpaid wages under the FLSA are not discretionary, but rather a matter of statutory entitlement when the necessary factual predicate has been established. 29 U.S.C. § 216(b) (“Any employer who violates the [minimum wage or overtime 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.”) (emphasis added). Courts do not have discretion to deny the award of FLSA damages when they have been proved. Adjudication of an FLSA cause of action does not call upon the court to make a discretionary policy- or interest-balancing assessment. See Keith Cunningham-Parmeter, Redefining the Rights of Undocumented Workers, 58 Am. U.L.Rev. 1361, 1389 (2009) (remarking that the nondiscretionary nature of back pay under the FLSA “leaves no room for any type of Hoffman-inspired balancing between federal labor and immigration objectives”).
Of course, the tension between policies underlying the FLSA, on the one hand, and the IRCA, on the other, continues to exist. In Hoffman, the Court was able to find a resolution by giving priority to the statutory policy of the IRCA over the administrative discretion of the NLRB. That resolution is not possible where both poles of the conflict are statutory directives. A court entertaining an FLSA suit lacks the authority or discretion to resolve the tension. If a plaintiff makes out an FLSA case, he is entitled to an FLSA remedy, any obstruction or interference with immigration policy notwithstanding. As Judge Walker of the Second Circuit noted, after that circuit tackled a particularly confounding case of conflict preemption under Hoffman, “judges are especially ill-suited to divining the unexpressed will of Congress when it comes to hot-button and ever-shifting issues like immigration policy.” Madeira, 469 F.3d at 254 (Walker, C.J., concurring). Any remedy for an incompatibility between federal labor and immigration policies will have to come from Congress, not the lower courts.
For the foregoing reasons, the plaintiffs’ immigration status is irrelevant to their FLSA claims and their suitability to lead a class. The defendants’ motions to compel (dkt. nos. 28 & 29) are DENIED.”
Click Jin-Ming Lin v. Chinatown Restaurant Corp. to read the entire decision.
N.D.Cal.: Undocumented Worker’s Submission Of False Documents To Obtain Employment Has No Bearing On FLSA Claims For Unpaid Wages Or Liquidated Damages
Ulin v. Lovell’s Antique Gallery
This case was before the Court on the parties’ cross motions for summary judgment on a variety of issues. As discussed here, the Defendants asserted that the Plaintiff, an undocumented immigrant, was not entitled to recover unpaid overtime wages and/or liquidated damages under the FLSA, because he fraudulently obtained his job by providing false documents to the Defendants. The Court roundly rejected this assertion, ruling that neither Plaintiff’s immigration status nor how he obtained his job had any impact on his FLSA claims.
Discussing these issues, the Court reasoned:
“Defendants argue that Plaintiff’s submission of false documents at the time of his employment precludes any recovery of overtime pay. Defendants point to the declaration of immigration attorney Jason Marachi, who reviewed the documents that Plaintiff submitted to Defendants at the time of his employment, performed an independent investigation, and concluded that Plaintiff submitted false work authorization documents to his employer and was not working legally in the United States while he worked for Defendants. See generally Marachi Decl. Plaintiff has not raised any factual dispute on this issue, but disagrees that his recovery of damages is affected.
Defendants rely primarily on Reyes v. Van Elk, Ltd., 148 Cal.App. 4th 604, 611 (2007), where the court stated that:
Thus, as presented to this court, this case does not involve a situation where undocumented workers submitted false work authorization documents to a prospective employer. (See e.g., Ulloa v. Al’s All Tree Service, Inc. (Dist.Ct.2003) 2 Misc.3d 262, 768 N.Y.S.2d 556, 558 [“The Court also notes in passing that, if there had been proof in this case that the Plaintiff had obtained his employment by tendering false documents (activity that is explicitly unlawful under IRCA), Hoffman would require that the wage claim [for unpaid wages] be disallowed in its entirety.”].) However, the issue of whether Hoffman requires that a wage claim be denied if an employee submitted false authorization documents is not before this court.
However, Reyes expressly did not reach the issue raised by Defendants, and therefore is of little help to them. Hoffman Plastic Components, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), cited by Reyes, foreclosed an award of backpay under the National Labor Relations Act to a worker who had submitted false documents to his employer because the Court found that an award of backpay “for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by criminal fraud” would run counter to immigration policy. Id. at 149, 151. Hoffman did not involve a case such as this, where Plaintiff claims to have already performed the work in question and seeks payment for that work, and so it is also not directly on point.
Plaintiff argues that regardless of whether he presented false documents and was working illegally, he is entitled to recover his earned wages. Plaintiff notes that the cases interpreting Hoffman have not applied it to bar recovery of wages already earned. See, e.g., Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F .Supp.2d 1056, 1061 (N.D.Cal.2002) (Breyer, J.) (quoting Flores v.. Albertsons, Inc., 2002 WL 1163623 (C.D.Cal.2002) (“Hoffman does not establish that an award of unpaid wages to undocumented workers for work actually performed runs counter to IRCA.”); Opp. at 19 (citing cases).
The case cited in Reyes, Ulloa v. Al’s All Tree Service, Inc., 768 N.Y.S.2d 556, 558 (Dist.Ct.2003), does not mandate a contrary result. Ulloa is New York small claims court decision where the Court limited an undocumented worker’s recovery of unpaid wages to the minimum wage, and then noted “in passing that, if there had been proof in this case that the Plaintiff had obtained his employment by tendering false documents (activity that is explicitly unlawful under IRCA), Hoffman would require that the wage claim [for unpaid wages] be disallowed in its entirety.” No case has followed this portion of Ulloa, or otherwise affirmatively held than an undocumented worker is precluded from recovering wages for work already performed simply because he submitted false documents at the time of employment. Indeed, a higher New York court has expressly rejected Ulloa ‘s dicta, and instead held that: “If federal courts ban discovery on immigration status in unpaid wages cases, the use of fraudulent documents on immigration status to gain employment in unpaid wages cases is likewise irrelevant. The only crucial issue is whether the undocumented worker performed services for which the worker deserves compensation. If so, public policy requires payment so that employers do not intentionally hire undocumented workers for the express purpose of citing the workers’ undocumented status or their use of fraudulent documents as a way to avoid payment of wages.” Pineda v. Kel-Tech Const., Inc., 832 N.Y.S.2d 386, 396 (N.Y.Sup.2007).
At oral argument, Defendants contended that, even if Plaintiff’s employment status does not require that all of his claims be disallowed, Hoffman precludes an award of liquidated damages under the FLSA. Defendants’ argument appears to be that FLSA liquidated damages are akin to the backpay for work not performed due to wrongful termination at issue in Hoffman, in that they go beyond simply compensating for past work, and therefore federal immigration policy makes this remedy unavailable to Plaintiff because it would reward violation of immigration laws while punishing the employer. There is no case expressly addressing the issue of whether FLSA liquidated damages are available to a plaintiff who presented false documents to his employer. While a close question, and one that pits important governmental policies relating to labor and immigration against each other, the Court’s interpretation of the statute and the caselaw runs counter to Defendants’ position.
First, the plain language of the FLSA mandates liquidated damages in an amount equal to the unpaid wages unless the employer “shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended,” in which case “the court may, in its sound discretion, award no liquidated damages or award any amount thereof …” 29 U.S.C. § 260. “Under 29 U.S.C. § 260, the employer has the burden of establishing subjective and objective good faith in its violation of the FLSA.” Local 246 Utility Workers Union of America v. Southern California Edison Co., 83 F.3d 292, 297-298 (9th Cir.1996). Thus, the plain language of the FLSA’s liquidated damages provision focuses exclusively on the employer’s conduct, not the employee’s conduct. There is nothing in the language of the statute that allows the Court to take Plaintiff’s misconduct into account in determining whether to award liquidated damages. To the contrary, the imposition of liquidated damages is mandatory unless the employer establishes its own good faith.
Second, under the FLSA, “liquidated damages represent compensation, and not a penalty. Double damages are the norm, single damages the exception.” Local 246 Util. Workers Union v. S. Cal. Edison Co., 83 F.3d 292, 297 (9th Cir.1996); see also Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 584 (1942) (liquidated damages compensate for damages too obscure and difficult of proof), superceded by statute on other grounds; Herman v. RSR Sec. Services Ltd., 172 F.3d 132, 142 (2d Cir.1999) (“Liquidated damages are not a penalty exacted by the law, but rather compensation to the employee occasioned by the delay in receiving wages due caused by the employer’s violation of the FLSA”). Congress provided for liquidated damages because it recognized that those protected by federal wage and hour laws would have the most difficulty maintaining a minimum standard of living without receiving minimum and overtime wages and thus “that double payment must be made in the event of delay in order to insure restoration of the worker to that minimum standard of well-being.” See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945).
Following Hoffman, “[c]ourts have distinguished between awards of post-termination back pay for work not actually performed and awards of unpaid wages pursuant to the Fair Labor Standards Act (‘FLSA’).” Zeng Liu v. Donna Karan Intern., Inc., 207 F.Supp.2d 191, 192 (S.D.N.Y.2002); see also Widjaja v. Kang Yue USA Corp., 2010 WL 2132068, *1 (E.D.N.Y.2010). In Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y.2002), the court held that Hoffman did not apply to FLSA cases in which workers sought pay for work actually performed, and that, “enforcing the FLSA’s provisions requiring employers to pay proper wages to undocumented aliens when the work has been performed actually furthers the goal of the IRCA” because if the FLSA did not apply to undocumented aliens, employers would have a greater incentive to hire illegal aliens with the knowledge that they could not be sued for violating minimum wage requirements. While the interest in deterring employers from knowingly hiring undocumented workers in order to avoid lawsuits for wage violations does not apply when an employee uses false documents to successfully deceive an unknowing employer who attempted to comply with immigration law, the interest in deterrence does apply when the employer had reason to suspect or knew that the employee was not authorized to work in the United States but hired him anyway, colluding in the use of false documents. The record here is silent as to whether Defendants were successfully deceived as to Plaintiff’s authorization to work or instead knew or suspected that his documents were falsified.
Unlike the backpay for hours not worked at issue in Hoffman, here the liquidated damages are a form of compensation for time worked that cannot otherwise be calculated. See also Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F.Supp.2d 1056 (N.D Cal.2002) (Breyer, J.) (stating that Hoffman did not address remedies of compensatory and punitive damages, and holding that undocumented employee could proceed with FLSA retaliation claim); Galdames v. N & D Investment Corp., 2008 WL 4372889 (S.D.Fla. Sept. 24, 2008) (finding that Hoffman did not overrule previous rule that an “undocumented worked may bring claims for unpaid wages and liquidated damages” for work already performed); Renteria v. Italia Foods, Inc., 2003 WL 21995190, *5-6 (N.D.Ill.2003) (striking FLSA backpay and frontpay claims in light of Hoffman /IRCA, but allowing claim for compensatory damages).
While none of the cases cited above involve an employee who affirmatively presented false documents, as opposed to simply being undocumented, Hoffman did not preclude compensatory damages for time already worked on the basis that the employee presented false documents. While the Hoffman Court was certainly concerned about the fact that the plaintiff had criminally violated IRCA by presenting false documents and was therefore never authorized to work in the United States, it also focused on the facts that: (1) the plaintiff had not actually performed the work for which he was seeking backpay, (2) he was only entitled to the backpay award by remaining in the country illegally, and (3) he could not mitigate damages as required without triggering further a IRCA violation. Here, by contrast, no further employment by Plaintiff is at issue as he only seeks compensation for work performed before his termination by Defendants and the issue of mitigating damages is not present, unlike in Hoffman. Further, as the Hoffman Court held, the NLRB’s other “ ‘traditional remedies’ [were] sufficient to effectuate national labor policy regardless of whether the ‘spur and catalyst’ of backpay accompanies them.” In contrast, FLSA liquidated damages are not a “spur and catalyst,” but instead numerous courts have found that they are intended as compensation for unpaid wages already earned but too difficult to calculate. Therefore, Defendants’ Motion is DENIED on this issue.”
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E.D.N.Y.: Defendant Not Entitled To Discovery Of FLSA Plaintiff’s Immigration Status
Widjaja v. Kang Yue USA Corp.
This case was before the Court, in part, on defendants motion to compel discovery of plaintiffs’ immigration status. Joining the majority of Courts to have ruled on such motions, the Court denied defendants’ Motion.
Defendants asserted two reasons to discover the immigration status of the plaintiffs for two reasons. First, they claimed the plaintiffs’ status in this country was relevant to plaintiffs’ credibility, arguing that if plaintiffs entered the country illegally then they are more likely to make false claims regarding hours worked. Second, defendants argued that if it is discovered that plaintiffs are illegal immigrants, then they would not be entitled to back pay for future loss of earnings since they would not be permitted to work under the Immigration Reform and Control Act of 1986 (“IRCA”). See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) (holding that the IRCA prevents the NLRB from awarding backpay to an illegal alien for work not performed).
Rejecting both claimed bases for defendants’ position, the Court explained:
“Rule 26 of the Federal Rules of Civil Procedure allows discovery of all relevant non-privileged matters. Fed.R.Civ.P. 26. A plaintiff’s immigration status is not normally discoverable. Rengifo v. Erevos Enterprises, Inc., No. 06 CV 4266, 2007 WL 894376 at *1 (S.D.N.Y. March 20, 2007). “[D]iscovery of such information would have an intimidating effect on an employee’s willingness to assert his workplace rights.” Id.
The Court rejects plaintiffs’ first argument that plaintiffs’ immigration status is relevant to their credibility. “While it is true that credibility is always at issue, that does not by itself warrant unlimited inquiry into the subject of immigration status….” Id. at *3. “[T]he opportunity to test the credibility of a party … does not outweigh the chilling effect that disclosure of immigration status has on employees seeking to enforce their rights.” Id. See also E.E.O.C. v. First Wireless Group, Inc., No. 03 CV 4490, 2007 WL 586720 (E.D.N.Y. Feb. 20, 2007) (finding immigration status not relevant to credibility); Avila-Blue v. Casa De Cambio Delgado Inc., 236 F.R.D. 190 (S.D.N.Y.2006) (same).
Defendants’ second argument is that plaintiffs’ immigration status may be relevant to damages, relying on the Supreme Court’s holding that the IRCA prevents the NLRB from awarding backpay to an illegal alien for work not performed. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271. However, on the issue of damages, “[c]ourts have distinguished between awards of post-termination back pay for work not actually performed and awards of unpaid wages pursuant to the Fair Labor Standards Act (“FLSA”).” Zeng Liu v. Donna Karan Intern., Inc., 207 F.Supp.2d 191, 192 (S.D.N.Y.2002). In Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y.2002), the court stated that Hoffman Plastic Compounds, Inc. v. NLRB does not apply to FLSA cases in which workers are seeking pay for work actually performed. The court in Flores stated that, “enforcing the FLSA’s provisions requiring employers to pay proper wages to undocumented aliens when the work has been performed actually furthers the goal of the IRCA” because if the FLSA did not apply to undocumented aliens, employers would have a greater incentive to hire illegal aliens with the knowledge that they could not be sued for violating minimum wage requirements. Flores v. Amigon, 233 F.Supp.2d at 464. See also Sandoval v. Rizzuti Farms, Ltd., No. 07 CV 3076, 2009 WL 2058145, at *2 (E.D.Wash. July 15, 2009) (holding that immigration status is not discoverable and Hoffman does not apply). But see Avila-Blue v. Casa De Carnbio Delgado Inc., 236 F.R.D. at 192 (finding that “the issue of immigration status may be relevant to damages insofar as it may limit the availability of certain forms of damages” and allowing the issue to be reopened at a later stage of the proceeding).”
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.
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.“
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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