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In the pretrial discovery phase of an action under the
Fair Labor Standards Act (FLSA), a federal district court in New York
ruled that the defendants could not question the plaintiffs regarding
their immigration status.
The defendants in
the case requested documents relating to the plaintiffs' ability to work
in the United States. In support of their request, the defendants cited
the holdings in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.
137 (2002), and Sanano v. 200 East 16th Street Housing Corp., 788
N.Y.S. 2d 314 (1st Dep't 2004), arguing that "claims for unearned wages
. . . cannot be collected by immigrants who are ineligible to work in
the United States." (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, p. 10. For a summary of the
decision in Sanano, see "N.Y. Court
Holds That Undocumented Workers Can Recover Lost Wages, but Only the
Amount They Would Have Earned in Their Home Country," IRU, Feb. 10,
2005, p. 9.)
The plaintiffs
responded by citing Liu v. Donna Karen International, Inc., 207
F. Supp. 2d 191 (S.D.N.Y. 2002), and Flores v. Albertsons, Inc.,
2002 WL 1163623, 2002 U.S. Dist. LEXIS 6171 (C.D. Cal. Apr. 9, 2002).
(For a summary of the decision in Liu, see "Court
Denies Designer Donna Karan's Request for Discovery into Immigration
Status," IRU, July 29, 2002, p. 14.) In opposing the defendants'
request, the plaintiffs cited the Flores decision, which,
according to the plaintiffs, (1) found that "workers are entitled to the
protections of FLSA regardless of immigration status" and (2) "draw[s] a
distinction between 'back pay' in Hoffman for work not performed
and ‘back pay' under FLSA for recovery of unpaid wages." The magistrate
judge hearing the case agreed with this argument, finding that "[t]his
distinction covers Sanano as well as Hoffman."
The judge therefore
denied the defendants' request. Following that ruling, the defendants
requested a ruling from the magistrate judge on whether they could
require the plaintiffs to answer whether they had a passport when they
arrived to the U.S. The defendants argued that the question does not
address the plaintiffs' immigration status. The judge denied the
request, clarifying that his previous decision meant that the defendants
could not ask any question about the plaintiffs' immigration status,
including any question about passports.
Trejo v. Broadway Plaza Hotel,
2005 U.S. Dist. LEXIS 17133
(S.D.N.Y. Aug. 16, 2005).
—By
Monica Guizar, NILC
employment policy attorney
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