§ 4.3 Practical Considerations in Asserting Employment Claims of Noncitizen Workers

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 4.3 PRACTICAL CONSIDERATIONS IN ASSERTING EMPLOYMENT CLAIMS OF NONCITIZEN WORKERS

§ 4.3-1 Likelihood of Adverse Immigration Consequences

A central fear of many immigrant workers, even among those who are work authorized, in asserting employment claims is whether filing those claims will adversely affect their immigration status. Workers who are lawfully present and authorized to work have little reason for such fears. Of course, a person who is not authorized to be in the United States is always vulnerable to detention and removal, regardless of whether they seek relief from adverse illegal employment practices. Although the possibility always exists that a disgruntled employer might respond to a claim by reporting the worker to immigration authorities, it is not in the employer's interest to do so, and this rarely happens, because employers often have other employees who are undocumented and who might be swept up in any enforcement action. This would subject the employer to sanctions for knowingly employing unauthorized workers.

An employer that retaliates by reporting the complaining worker to immigration officials violates the antiretaliation provisions of the FLSA. 29 USC § 215(a)(3); see Centeno-Bernuy v. Perry, 302 F Supp 2d 128, 135-36 (WDNY 2003); Singh v. Jutla, 214 F Supp 2d 1056, 1059-62 (ND Cal 2002); Contreras v. Corinthian Vigor Ins. Brokerage, 103 F Supp 2d 1180, 1184 (ND Cal 2000).

§ 4.3-2 Discovery Issues

A number of perplexing discovery issues are likely to present themselves in litigation on behalf of an undocumented worker. During discovery the employee may be asked about immigration status, and this may call for testimony that is damaging to the case, or even self-incriminating. The plaintiff may be called on to be deposed in the jurisdiction after having left the country. The plaintiff may be obligated to provide other forms of discovery while out of the country. Identifying these problems in advance is important in moving forward smoothly with the litigation.

Most experienced advocates for immigrant workers recommend aggressive motion practice to avoid inquiry in discovery about the immigration status of plaintiff workers and related matters. This is particularly an issue with plaintiff depositions when seeking a protective order is advisable, if there is reason to think the issue will come up. In many instances, such as in a claim for wages for hours actually worked, the plaintiff's status is irrelevant to any issue in the case...