Thread: Court Sets 'Don't Ask, Don't Tell' Rule for Illegal-Alien Cl

Court Sets 'Don't Ask, Don't Tell' Rule for Illegal-Alien Class Action Plaintiffs
Michael Booth
New Jersey Law Journal
May 22, 2009

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In a case of first impression in New Jersey, an Appellate Division panel held Wednesday that defense counsel cannot ask the plaintiffs about their immigration status during discovery in a putative class action suit alleging an employer cheated its workers out of just compensation and overtime pay.

Nor can the plaintiffs be asked about whether they lied to their employer or made false statements, unless the defense can make a showing that those statements have a direct impact on their credibility in determining whether they are, in fact, eligible for back pay and overtime, the court said in Serrano and Vivar v. Underground Utilities Corp., A-0676-08.

The ruling follows a majority of state and federal courts that have held asking about a plaintiff's immigration status improper because it has a chilling effect on employees seeking vindication of their workplace rights.

Furthermore, exposing their immigration status, if illegal, could have an adverse impact on their case. "Their illegal status in this country is very likely to trigger negative sentiments in the minds of some jurors," Judge Jack Sabatino wrote for the panel. "The real world concern facing the court is whether the disclosure of immigration status would sufficiently inflame or distract jurors from their role as objective fact-finders."

The Essex County suit was lodged against two affiliated Linden companies, Underground Utilities Corp. and Pipeline Equipment Co. Inc., and its officers for allegedly violating the Fair Labor Standards Act, 29 U.S.C.A. §§ 207 and 216, and the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25 to -56.47.

The plaintiffs claim the companies paid them substandard wages and withheld overtime pay for work done on various public constructions projects, including work on the New Jersey Turnpike.

Lead plaintiffs Juan Serrano and Edilberto Vivar, who are from Central or South America, gave conflicting answers during discovery when defense counsel asked if they were in the country legally and if their documentation was correct.

Plaintiffs lawyer, Lloyd Ambinder asked Superior Court Judge Dennis Carey to prohibit the defense from that line of questioning, but Carey issued a protective order that allowed the defense to ask 20 questions about the plaintiffs' immigration status, where they lived and whether the information on their Social Security cards, residency forms and tax records was true. Ambinder appealed.

The Appellate Division panel modified the protective order to prohibit asking about immigration status. "[W]e categorically reject defendants' position that the discovery of any immigration-related information that bears upon plaintiffs' credibility is, per se, fair game," Sabatino said, calling that inquiry "patently too far afield and too prone to cause intimidation to warrant exploration by defense counsel."

Presiding Judge Philip Carchman filed a concurring opinion, joined by Judge Marie Simonelli, stating that the proper methodology for balancing the appropriate factors is to start with a presumption that any inquiry into matters of immigrant status is not appropriate. He would have placed the burden on the proponent to demonstrate, beyond the issue of credibility, why such inquiry is germane to the issues in dispute. "No matter what their immigration status, if plaintiffs establish that they worked the asserted hours, they are entitled to payment," Carchman wrote.

Ambinder, of New York's Barnes, Iaccarino, Virginia, Ambinder & Shepherd, says of the ruling, "I'm pleased the court is sensitive to the plaintiffs' immigration status, but I'm cautious because the Appellate Division gave the court some leeway," namely, to allow the defense to ask questions that go to the plaintiffs' creditibility. "But we're in a better position," he says. "The defense has a lot to overcome."

Defense attorney N. Ari Weisbrot says the ruling, while well reasoned, places obstacles to discovery that have not been in place before. But he acknowledges that there are two competing principles at issue. "There is a need to allow discovery to be as expansive as possible," says Weisbrot, of Hackensack's Phillips Nizer, "coupled with the clearly sensitive and confidential issues relating to immigration status."

Weisbrot says he doesn't care about whether the plaintiffs are in the country legally or not. What does matter, he says, is whether they lied during their depositions. If it can be shown that they did, the jury should be allowed to hear that because it impacts on their credibility when it comes to their allegations that they were not paid the prevailing wage or worked overtime.

"Their immigration status is of no interest to me," Weisbrot says.

As for an appeal to the state Supreme Court, Weisbrot says he and his clients "are reviewing our options."

http://www.law.com/jsp/article.jsp?id=1202430899191

Is this a double edged sword? I don't know if this can make employers that cheat their IA workers out of hiring them or will it just protect the lawbreaker Illegal?

This was a pro-union decision.

I will plead ignorant when it comes to complexities of the legal system.

However it seems to me that in the past there was horse named Common Sense that actually won the Triple Crown many years ago. I wonder what ever happened to that lineage? Perhaps it broke it's breeding part and the genetics were lost.........hmmm.

Common sense would dictate that the legal status is established and all offended employees are paid. Then deportations for those whose status is found to be illegal. Oh, but none of this common sense is PC, right?

Rockfish wrote,

Common sense would dictate that the legal status is established and all offended employees are paid. Then deportations for those whose status is found to be illegal. Oh, but none of this common sense is PC, right?

Agreed. With a further comment.

Common sense would, or should, also preclude that the offended party is aware that they have broken the law. A law if it had been followed, would have avoided ANY other troubles that might occur while that law is being broken. The offended should not have been here. The offended not only broke the law, but they offended common sense.

Why open the can of immorality and then expect for morality too defend you? Should one cut off their nose to spite their face?

But hey, I am just a backwoods redneck, not a lawyer.

If I were the judge, I would pay the offended, then put him or her in jail for being here illegally and then deport them. Then they could go home and tell their freinds that those backwoods redneck judges up there in Gringo land have laws that they actually enforce. Then I would advise the state to look into any laws that may have been broken by the employer.

I was brought up to understand that if you tresspass on another man's land then break your leg, if you had not tresspassed then your leg would be fine.

An ounce of prevention is worth a pound of cure.