May 2007

IMMIGRATION STATUS AS A DEFENSE TO EMPLOYMENT-LAW CLAIMS

BY PATRICK H. HICKS & DEBORAH L. WESTBROOK

With an estimated 7.2 million illegal immigrants employed in the U.S. workforce, undocumented immigrant labor was one of the hot-button political issues of 2006.  On May 1, 2006 the debate over undocumented workers prompted the nationwide walk-out of more than a million supporters of immigrant rights in at least 40 states.  In the past year, the U.S. Immigration and Customs Enforcement (“ICE”) Division has taken a more aggressive role in enforcing the country’s immigration laws, with numerous highly-publicized arrests and prosecutions, culminating in the December 2006 round-up of hundreds of undocumented workers at beef-packing plants across the country. 

Given this political backdrop, it should come as no surprise that immigration status can also have a role to play in the defense of employment law claims.  In particular, evidence that a plaintiff was or is an undocumented worker may reduce an employer’s liability for certain damages under the federal employment laws.  Nevertheless, the courts have made it extremely difficult for employers to obtain any information about plaintiffs’ immigration status during discovery, which has limited employers’ ability to assert these defenses.  This article sets forth some of the novel ways that defense counsel has been using immigration status in the defense of employment law claims and offers some tips on how to navigate the discovery hurdles imposed by the courts.

1.               Undocumented Worker Status as a Defense to Employment-Law Claims.

Immigration status can come into play in the defense of employment-law claims in a variety of different ways. 

a.         After-Acquired Evidence Under Title VII.

In cases arising under Title VII, evidence that a plaintiff lied about his or her immigration status to get hired by a defendant employer can limit the plaintiff’s available remedies under the after-acquired evidence doctrine.  The after-acquired evidence doctrine prevents an employee from recovering front-pay and back-pay damages where the employer later discovers evidence of wrongdoing that would have led to the employee’s termination had the employer known of the wrongdoing.  See McKennon v. Nashville Banner Publ. Co., 513 U.S. 352, 362-63 (1995).  In the context of undocumented employees, the defense can operate as follows:

[U]nder the after-acquired evidence doctrine, plaintiffs are precluded from recovering backpay and frontpay damages for discrimination under Title VII, once an employer discovers that plaintiffs are unauthorized aliens, if the employer proves that upon discovery of the unauthorized alien status, the employer would have complied with the law and terminated the employee’s employment.

Rivera v. NIBCO, Inc., 384 F.3d 822, 826 (9^th Cir. 2004) (J. Bea, Dissenting).  Significantly, the employer must show that he would have terminated the employee’s employment had the employer known that the employee was undocumented.  The employer’s past practices in dealing with documented and undocumented immigrant workers may be relevant in establishing the defense.  In this regard, employers should be aware that once they open the door to this kind of discovery by seeking information about a plaintiff’s immigration status, the plaintiff may also attempt to discover evidence of the company’s practices in dealing with immigrant workers.  Before deciding to pursue this kind of discovery, employers should weigh the risks and benefits of attempting to assert this defense. 

b.         Attacking the Plaintiff’s Credibility.

Evidence of an employee’s immigration status can also be useful in attacking a plaintiff’s credibility in employment law cases, particularly where the evidence shows that the plaintiff has falsified documents or misrepresented his or her immigration status in obtaining employment in the first place.¹  However, in order to rely on a plaintiff’s immigration status for impeachment purposes, employers should be prepared to demonstrate either fraud or misrepresentation on the part of the plaintiff with respect to his or her immigration status.

c.         Defeating a Plaintiff’s Prima Facie Case of Discrimination.

Defense attorneys have also had some success in arguing that undocumented employees are not “qualified” for employment under Title VII and other anti-discrimination laws and, in turn, that such workers cannot establish a prima facie case of discrimination or retaliation.² This defense is based on the notion that because undocumented aliens are not authorized to work in the United States, they are not “qualified” for employment here.  The Ninth Circuit does not appear to have weighed in on this argument and it is unclear whether such an argument would be persuasive in this jurisdiction.

d.         Reliance on Hoffman Plastic and the IRCA.

More recently, defense counsel have relied on the U.S. Supreme Court’s ruling in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), to argue that undocumented plaintiffs are partially (and, in some cases, completely) barred from recovering under various federal employment laws.  In Hoffman, the Supreme Court ruled that the Immigration Reform and Control Act of 1986 (“IRCA”) prevented an undocumented worker from receiving back-pay as a remedy for his employer’s violation of the National Labor Relations Act (“NLRA”). 

In reaching this conclusion, the Supreme Court noted that under the IRCA, if an employer unwittingly hires an unauthorized alien, or if the alien becomes unauthorized during his or her employment, the employer must discharge the worker upon discovery of the worker’s undocumented status.  The court pointed out that employers who violate the IRCA are subject to both civil fines and criminal prosecution.  Finally, the court observed that the IRCA prohibits aliens from using or attempting to use “any forged, counterfeit, altered, or falsely made document” or “any document lawfully issued to or with respect to a person other than the possessor” to obtain employment in the United States.  Given these strong policies against the employment of unauthorized workers, the court found that awarding back-pay would not only trivialize immigration laws, but would encourage future violations. 

The Supreme Court’s decision in Hoffman Plastic and its interpretation of the IRCA has opened the door to a new line of defenses to employment-law claims.  Based on Hoffman Plastic, counsel may now argue that back-pay and front-pay may not be awarded to undocumented plaintiffs in cases arising under the NLRA, state anti-discrimination laws, Title VII, Americans with Disabilities Act (“ADA”), Family Medical Leave Act (“FMLA”) and the Age Discrimination in Employment Act (“ADEA”).³  Creative defense attorneys may even argue that the Supreme Court’s decision in Hoffman Plastic implies that an undocumented plaintiff lacks standing to pursue his or her claims under any of the federal employment laws.⁴  

Nevertheless, while there have been a myriad of cases addressing the propriety of discovery into a plaintiff’s immigration status under Hoffman, there have been few published decisions dealing with the merits of such defenses.  In one of the few reported cases, Crespo v. Evergo Corp., 366 N.J. Super. 391, 472 (N.J. Super. Ct. App. Div. 2004), the Appellate Division of the New Jersey Superior Court ruled that an illegal immigrant could not pursue any claims for damages against her employer under New Jersey’s Law Against Discrimination based on her alleged termination for taking maternity leave.  Relying in part on the IRCA and Hoffman, the court ruled that the illegality of the plaintiff’s employment precluded both the economic and non-economic damages that she claimed resulted from her termination.  

2.         Discovery of Immigration Status in Employment-Law Cases.

As the above-mentioned cases make clear, information about a plaintiff’s immigration status has the potential to be quite helpful in defending employment law claims.  Nevertheless, evidence of an employee’s immigration status is frequently deemed “off-limits” by the courts when defendant employers have attempted to discover this information.

In the oft-cited case Rivera v. Nibco, 364 F.3d 1057 (9th Cir. 2004), the Ninth Circuit Court of Appeals ruled that neither Hoffman Plastic nor the after-acquired evidence doctrine could justify discovery into a plaintiff’s immigration status under Title VII.  The Ninth Circuit held that even if the information were relevant under Hoffman Plastic, such discovery would be improper.  The court reasoned that allowing defendant employers to inquire into plaintiffs’ immigration status would have a “chilling effect” that would discourage the plaintiffs from continuing to pursue their claims, and discourage others from pursuing claims in the future.  As for the after-acquired evidence doctrine, the court observed that the defendant had not come forward with any evidence that would justify limiting the plaintiffs’ remedies, and concluded that McKennon would not permit the defendant to “fish” for such evidence during discovery. 

A number of district courts have relied upon the reasoning in Rivera in precluding discovery in Title VII cases.⁵ Other courts have suggested that in Title VII cases, discovery into immigration status is not permissible under Hoffman unless the plaintiff is seeking front-pay, back-pay, lost wages or benefits.⁶   There is also a line of FLSA cases which have prohibited employers from inquiring about workers’ immigration status during the discovery phase of litigation.⁷  In these FLSA cases, the courts denied defendants’ requests for discovery as irrelevant, distinguishing Hoffman on grounds that it applied only to back-pay, and not to recovery for work already performed.

3.         What’s an Employer to Do?

Defendant employers face an unfortunate “Catch-22” when it comes to using immigration status as a defense to employment law claims.  In order to establish a defense based on a plaintiff’s immigration status, an employer needs to know whether or not the plaintiff is, in fact, an undocumented employee.  However, the courts – particularly the Ninth Circuit Court of Appeals – have made it exceedingly difficult for a defendant employer to obtain any information regarding a plaintiff’s immigration status during the discovery phase of litigation. 

Employers are not without recourse, however.  While many courts have refused to compel discovery into immigration status, defendant employers are still free to conduct their own investigations without the aid of the court.  Moreover, at least two recent cases have indicated that such discovery may be appropriate in non-FLSA cases where economic damages such as back-pay, front-pay, lost wages and benefits are squarely at issue.  Finally, not all jurisdictions have weighed in on these discovery issues, so there is ample room for creative and persuasive defense counsel to create new precedent in this changing area of the law.

Patrick H. Hicks is the Founding Shareholder of Littler Mendelson’s Las Vegas and Reno offices.  He can be reached at phicks@littler.com.  Deborah L. Westbrook is an Associate at Littler Mendelson in Las Vegas.  She can be reached at dwestbrook@littler.com.

1  C.f. Mischalski v. Ford Motor Co., 935 F. Supp. 203, 208 (E.D.N.Y. 1996) (stating that a plaintiff’s status as an illegal immigrant does not impugn his credibility absent “specific evidence to support [the] contention that plaintiff made misrepresentations to anyone about his immigration status”). 

2  See, e.g., Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 187 (4^th Cir. 1998), cert. denied, 525 U.S. 1142 (1999); see also Slaitane v. Sbarro, Inc., et al., No. 03 Civ. 5503 (AJP) & 03 Civ. 5504 (AJP), 2004 U.S. Dist. LEXIS 9839, *61-65 (S.D.N.Y. June 4, 2004); see also Reyes-Gaona v. North Carolina Growers Ass’n, 1:00CV00093, 2000 U.S. Dist. LEXIS 14701, *8-9 (M.D.N.C. June 22, 2000). 

3 Because the Supreme Court only denied the plaintiff back-pay for unworked hours in Hoffman, some courts have suggested that the decision would not preclude an undocumented employee from recovering unpaid wages for hours already worked under the FLSA.  See, e.g., Singh v. Jutla & C.D. & R Oil, Inc.,  214 F. Supp. 2d 1056, 1060-62 (N.D. Cal. 2002).

4 See, e.g., Lopez v. Superflex, No. 01 CIV. 10010 (NRB), 2002 WL 1941484, *2 (S.D.N.Y. Aug. 21, 2002) (“if plaintiff were to admit to being in the United States illegally, or were to refuse to answer questions regarding his status..., then the issue of his standing would properly be before us, and we would address the issue of whether Hoffman Plastic applies to ... claims for compensatory and punitive damages brought by undocumented aliens”). 

5  See, e.g., De La O v. Arnold-Williams, No. CV-04-0192-EFS, 2006 U.S. Dist. LEXIS 76816, *9-12 (E.D. Wash. October 20, 2006); Avila-Blum v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190, 191-92 (S.D.N.Y. 2006).

6 See e.g., EEOC v. The Restaurant Co., 448 F.Supp. 2d 1085, 1087 (D. Minn. 2006); EEOC v. Bice of Chicago, 229 F.R.D. 581, 583 (N.D. Ill. 2005).

7  See, e.g., Zeng Liu v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191, 192-93 (S.D.N.Y.); Singh, 214 F. Supp. 2d at 1060-62; Flores v. Amigon, 233 F. Supp. 2d 462, 463-65 (E.D.N.Y. 2002);Flores v. Albertsons, Inc., No. CV0100515AHM(SHX), 2002 WL 1163623, *5-6 (C.D. Cal. 2002); see also Martinez v. Mecca Farms, Inc., 213 F.R.D. 601, 604-05 (S.D. Fla. 2002).