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Labor and Employment Publications

Immigration Status and Work Authorization is irrelevant and does not bar recovery of back-pay for work performed in Wage and Hour Cases

Charles Pascal Cohen

Immigration status is irrelevant for the purposes of backpay, and has generally been protected from discovery in FLSA and NYLL cases. Undocumented workers are often taken advantage of by unscrupulous employers who deny minimum wage and overtime benefits to such employees. Often, employers understand that undocumented workers will not bring a claim against the employer for money earned and not paid, for fear of implicating their immigration status in any court proceeding and thereby adversely affecting any attempts to procure an immigration benefit, or worse.

In Rosas v. Alice's Tea Cup, the employers (defendants) sought discovery and information regarding the employees' (plaintiffs') immigration status and and work authorization. The defendants argued that:

if plaintiffs submitted invalid employment authorization documents, their “claims for wages under New York Labor Law are barred as a matter of law,” and that evidence regarding their immigration status and work authorization is therefore relevant...

The Court denied “[d]iscovery into plaintiff's immigration status as irrelevant and impermissible” and precluded the defendants from seeking evidence regarding the plaintiffs' immigration status and work authorization. The Court citing a battery of cases stated that:

[F]ederal courts have made “clear that the protections of the FLSA are available to citizens and undocumented workers alike”... Therefore, in the context of wage and hour violations under both the FLSA and the NYLL, immigration status has generally been protected from discovery...

In granting the plaintiff's application for a protective order, the Court went on to explain that:

[C]ourts distinguish between “undocumented workers seeking backpay for wages actually earned,” as in FLSA wage and hour violations, and “those seeking backpay for work not performed,” as in a termination in violation of the NLRA... This is because denying undocumented workers the protection of the FLSA would “permit[ ] abusive exploitation of workers” and “create[ ] an unacceptable economic incentive to hire undocumented workers by permitting employers to underpay them,” in violation of the spirit of the IRCA... In arguing that a worker who violates the IRCA is barred from recovery, the defendants rely only on cases in which plaintiffs sought backpay for work not performed... These cases are inapplicable where a plaintiff seeks backpay under the NYLL for work actually performed.

With respect to the relevance of plaintiffs immigration status to credibility, the court stated that “[w]hile it is true that credibility is always at issue, that ‘does not by itself warrant unlimited inquiry into the subject of immigration status when such examination would impose an undue burden on private enforcement of employment discrimination laws.” Additionally, the court said, "[e]ven if evidence regarding immigration status were relevant, “the risk of injury to the plaintiffs if such information were disclosed outweighs the need for its disclosure” because of the danger of intimidation and of undermining the purposes of the FLSA."

See:   Rosas v. Alice's Tea Cup, LLC, No. 14 CIV. 8788 JCF, 2015 WL 4097947 (S.D.N.Y. July 6, 2015)