Worker Allowed To Remain Silent And Refuse To Disclose Immigration Status In A Negligence Case

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

WORKER ALLOWED TO REMAIN SILENT AND REFUSE TO DISCLOSE IMMIGRATION STATUS IN A NEGLIGENCE CASE
Immigrants' Rights Update, Vol. 18, No. 7, November 8, 2004

In a work injury–related lawsuit, a Massachusetts court recently denied the defendants’ motion to compel the plaintiff to answer questions regarding his immigration status posed to him at his deposition, as well as the defendants’ motion to strike the objections made by the plaintiff’s counsel at the deposition. The court also granted the plaintiff’s request for a protective order.

The plaintiff, Ivan Pontes, was electrocuted while painting an electrical high tension tower and suffered severe second- and third-degree burns over 30 to 40 percent of his body. In addition to filing a workers’ compensation claim against his employer, Pennsylvania Tower Painting Co., Pontes and his wife filed a lawsuit against New England Power Company, Massachusetts Electric Company, National Grid USA, and Pennsylvania Tower Painting Co., alleging that his injury resulted because of the defendants’ negligence and failure to warn Pontes of the dangers inherent in the job he was performing. When Pontes appeared for a deposition on Jan. 28, 2004, the defense counsel asked him several questions regarding his immigration status. Plaintiff’s counsel objected to these questions, citing Pontes’s Fifth Amendment right against self-incrimination, and instructed Pontes not to answer.

In reaching its decision to deny the defendants’ motion, the Massachusetts Superior Court first analyzed whether Pontes’s assertion of his Fifth Amendment right was justified. The court determined that a “witness may refuse to testify based on their invocation of the [Fifth Amendment] privilege unless it is ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” Citing Commonwealth v. Funches, 379 Mass. 283, 289 (1979), quoting Hoffman v. United States, 341 U.S. 479, 488 (1951). “The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.” Id., 379 Mass. at 289.

The court held that while fear of deportation alone is not a valid basis for asserting the Fifth Amendment privilege, since deportation proceedings are civil proceedings, the Immigration and Nationality Act does make it a crime for an undocumented person to use fraudulent documents to circumvent the I‑9 employment eligibility verification process to obtain employment in the U.S. See 8 U.S.C. § 1324c. While Pontes’s answers regarding his immigration status in themselves do not amount to a per se violation of the INA, the court noted that they undoubtedly could furnish a link in the chain of evidence needed to prosecute Pontes, were he undocumented. The court also found the plaintiff’s fear that he would be prosecuted if he directly answered the questions posed to him at the deposition to be entirely reasonable.

After finding that Pontes’s invocation of the Fifth Amendment was justified, the court next analyzed whether his immigration status is relevant to any claim or defense in the case before the court. Because the case is at the discovery stage, the court had to determine whether the plaintiff’s immigration status is relevant or would lead to the discovery of relevant evidence, and therefore if it is the type of information that is “discoverable” at a deposition. Relying on the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 148 (2002), the defendants argued that Pontes’s immigration status is relevant to the calculation of damages for his lost earning capacity, because if Pontes were undocumented, he would not be entitled to work in the U.S. On the other hand, Pontes contended that his immigration status is not relevant to the proceedings because the reasoning in Hoffman Plastic does not apply to the circumstances of his case.

The court noted that a determination of how much earning capacity an injured plaintiff has lost is based on the degree to which the plaintiff’s ability to work has been diminished and not necessarily on what job the plaintiff did previously or will do in the future. “[Lost] earning capacity is based on the amount by which earning capacity is diminished due to the defendant’s tortious conduct.” See Shea v. Rettie, 287 Mass. 454, 456 (1934). Rejecting the defendants’ argument, the court held that the “relevant issue in calculating diminished earning capacity is the effect of the work injury on earning capacity, rather than the effect of the employee’s alien status on work capacity.” See Moran v. Dickinson, 204 Mass. 559, 562 (1910); and Medellín v. Cashman KPA, et al., Board No. 03324300 (For more on this latter case, see “Massachusetts Board Does Not Extend Hoffman’s Reach and Affirms Undocumented Workers’ Right to Workers’ Compensation,” Immigrants’ Rights Update, Feb. 17, 2004, p. 8).

Moreover, the court found that the Hoffman Plastic decision was inapplicable in Pontes’s case. While the Supreme Court had been concerned with preventing an incentive for undocumented workers to violate the INA in order to obtain jobs in the U.S., the policy underlying Pontes’s case is instead to decrease the incentive for employers to violate the INA. The court held that employers would be more inclined to hire undocumented workers if they know their financial liability may be less if an undocumented worker is injured on the job. In addition, the court said, “Employers will also have less incentive to provide adequate workplace safety measures for jobs they intend to fill with illegal immigrants. . . . This affects illegal as well as citizen employees.” The court held that the Hoffman Plastic decision does not make Pontes’s immigration status relevant to these legal proceedings. Finally, the court added that even if the plaintiff’s immigration status were relevant, the risk of injury to him would far outweigh the need for its disclosure.

Pontes, et al. v. New England Power Co., et al., 18 Mass. L. Rep. 183 (Mass. Super. Ct. 2004).