Co-authored by Ariel Cudkowicz and Jessica Schauer
On March 23, 2011, a federal court in Massachusetts held that an employer was not entitled to information about the named plaintiffs’ immigration status in a putative collective action alleging minimum wage violations. In Lin v. Chinatown Restaurant Corp., No. 09-11510, Judge George A. O’Toole, Jr. rejected the defendants’ argument that the information was relevant to their defenses because the Supreme Court’s 2002 decision in Hoffman Plastic Compounds Inc. v. NLRB precludes illegal immigrants from obtaining awards of back pay.
In Hoffman, the Supreme Court held that the National Labor Relations Board (“NLRB”) could not award back pay to undocumented immigrants who had been terminated in violation of the National Labor Relations Act. The Supreme Court explained that such an award would conflict with federal immigration policy as expressed in the Immigration Reform and Control Act of 1986 (“IRCA”). The IRCA contains a number of provisions aimed at combating employment of undocumented workers.
While Judge O’Toole rejected many of the policy arguments advanced by other courts in declining to extend Hoffman to the FLSA context, he nonetheless found Hoffman distinguishable because the back pay award at issue in that case was discretionary. Administrative law principals preclude the NLRB and other agencies from using their discretion in a manner contrary to Congressional policy. In contrast, “awards for unpaid wages under the FLSA are not discretionary.” Thus, the Court noted, once a plaintiff “makes out an FLSA case, he is entitled to an FLSA remedy, any obstruction or interference with immigration policy notwithstanding.” Finding that the plaintiffs immigration status was therefore “irrelevant” to their claims, the Court blocked the defendants’ efforts to obtain discovery of that information.
Because of its subject matter, the Lin decision is likely to spark controversy. Regardless of where one stands with respect to the national debate over immigration policy, however, the breadth of the decision is troubling for employers. Generally, litigants in federal court are entitled to discovery of any information “reasonably calculated to lead to the discovery of admissible evidence.” Even if a worker’s immigration status does not serve as a bar to an FLSA claim, in the context of a collective action, it may help a defendant learn whether the named plaintiff is similarly situated to the putative class in other material ways. For example, undocumented workers may be more likely to accept pay “under the table,” making them more susceptible to minimum wage violations than documented workers or U.S. citizens in the same job. Lin’s unqualified prohibition of discovery of the plaintiffs’ immigration status could have the unintended consequence of making legitimate efforts to defend against class certification more difficult.
* Apologies to Emma Lazarus and the Statue of Liberty National Monument.