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By
Karen Tumlin
NILC Skadden Fellow
Following the Supreme Court's decision in
Hoffman Plastic Compounds, Inc. v. National Labor Relations Board,
535 U.S. 137 (2002), employers have attempted to extend the Court's
limited decision that undocumented workers are not eligible for
post-termination back pay for violations of the National Labor Relations
Act to a range of other contexts. (For a summary of the decision in
Hoffman, see "Supreme
Court Bars Undocumented Worker from Receiving Back Pay Remedy for
Unlawful Firing," Immigrants'
Rights Update, Apr. 12, 2002.) For example, employers have
attempted to argue that undocumented immigrants cannot recover unpaid
wages for work already performed under federal and state wage and hour
statutes or that undocumented workers are not entitled to certain
remedies under federal anti-discrimination law, including Title VII.
Often, employers make these arguments during the discovery stage of a
case as they attempt to discover information relating to the plaintiffs'
immigration status to intimidate immigrant plaintiffs. However, in one
recent Title VII case in federal district court in Nebraska, an employer
attempted to raise the issue of the plaintiff's immigration status
after discovery in the case had already concluded.
In this case, the employer requested leave to
amend its first amended answer to argue that, according to Hoffman,
if the plaintiff was not authorized to work in the U.S., she would not
be entitled to back pay, prospective front pay, or reinstatement under
Title VII. The magistrate judge refused to allow the employer to file a
second amended answer for the sole purpose of questioning the
plaintiff's immigration status. The magistrate judge based this
decision on a finding that the employer gave no reason to justify the
delay in raising this issue earlier in the case. By the time the
employer moved to amend the complaint; the case had been pending for
over a year, had already gone through discovery, and was previously the
subject of an administrative claim before the Nebraska Equal Opportunity
Commission. In fact, by the time the employer attempted to raise this
issue, the plaintiff had already prevailed on a summary judgment motion
and only the issue of damages in her Title VII complaint was proceeding
to a jury trial.
In addition, the judge also found that
although there was no binding precedent extending the Supreme Court's
Hoffman decision to the Title VII context, the "few cases addressing
that issue" cast doubt on the employer's argument for such an
extension. The post-Hoffman Title VII cases cited by the judge
are: Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004);
Escobar v. Spartan Security Services, 281 F. Supp. 2d 895 (S.D.
Tex 2003); and De La Rosa v. North Harvest Furniture, 210 F.R.D.
237 (C.D. Ill. 2002). (For more on Escobar, see "Fired
Undocumented Worker who Subsequently Obtained Work Authorization May
Pursue Reinstatement and Front Pay under Title VII,"
IRU, Oct. 21, 2003. For more on De La Rosa see "Courts
Continue Rejecting Defendants' Post-Hoffman Inquiries into
Plaintiffs' Immigration Status,"
IRU, Oct. 21, 2002.)
This case is important because it reminds
practitioners and advocates that employers may seek to raise Hoffman
as a bar on immigrant workers' remedies at any time in litigation, not
simply during discovery. Although the judge in this case stopped short
of holding that the reasoning in Hoffman cannot be applied to bar
immigrant plaintiffs from remedies under Title VII, the Rivera v.
NIBCO, Inc. case provides extensive analysis of why the NLRA and
Title VII are distinct statutory schemes and, therefore, why Hoffman
should not be interpreted as applying in the Title VII context. (For
more on Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir.
2004), see "9th Circuit
Upholds Protective Order Limiting Employers' Inquiries into Plaintiffs'
Immigration Status," IRU,
June 18, 2004.)
Garcia v.
Monument Management Group, LLC,
2006 U.S. U.S. Dist. LEXIS 48532 (D. Neb. 2006).
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