Workers Protected from Further Retaliation and Threats of Being Reported to the INS

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

ANSOUMANA, ET AL. V. GRISTEDE'S OPERATING CORP. ET AL.: WORKERS PROTECTED FROM FURTHER RETALIATION AND THREATS OF BEING REPORTED TO THE INS
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

A federal judge with the U.S. District Court for the Southern District of New York has granted a group of delivery workers a preliminary injunction prohibiting the defendant employer from further threatening the workers with being reported to the Immigration and Naturalization Service.

After two West African immigrant workers testified in a state court proceeding that their employer owed them unpaid wages and overtime pay, they were fired from their jobs. These workers are part of a class action lawsuit in New York seeking to recover unpaid wages (see "Court Certifies Low-Wage Delivery Workers' Class Action," Immigrants' Rights Update, June 29, 2001, p. 13). Approximately one week after the hearing, the defendant began requiring that all employees fill out an employment application form that contained blanks for passport or visa numbers. The workers were all required to bring copies of their passports or visas. Employees who refused to fill out the application risked not being paid. At least three other delivery workers were also fired. The defendant subsequently advised the plaintiffs' counsel that he was making a list of all those workers who were undocumented in order to turn them in to the INS.

The federal district court ordered the five workers who were fired reinstated with full back pay, holding that these firings were retaliatory in violation of section 215(a)(3) of the Fair Labor Standards Act of 1938 (FLSA). The judge also found that the firing of these five workers caused irreparable harm to their livelihood and that the threat of being fired also had irreparable chilling effect for the other class members who were willing to pursue their claims against the defendant. The court found that the employer was using the INS "as a terrorizing and intimidating weapon against the plaintiffs." The judge rejected the defendant's arguments that these workers are independent contractors and not its employees. However, the court cited the fact that if the workers were indeed independent contractors, the defendant had no right to inquire into their immigration status. According to the court, the fact that the employer was attempting "to use the INS as a terrorizing weapon" shows that the defendant was either indifferent to the FLSA or had neglected to comply with the requirement under the Immigration Reform and Control Act of 1986 that it verify the employment eligibility of employees when they were first hired.

The court found the defendant's actions "unlawful and reprehensible" and issued an order prohibiting the defendant from retaliating in any way against any of the plaintiffs or class members. In addition, the court enjoined the defendant and any of its attorneys, employees, or agents from directly contacting the INS about any of the class members.

Ansoumana, et al. v. Gristede's Operating Corp. et al., No. 00 CV 0253 (AKH)(S.D.N.Y. Nov. 28, 2001) (order granting preliminary injunction).