Immigration status irrelevant when pursuing unpaid wages.

One of the groups most vulnerable to wage theft is the low-wage worker - particularly those workers who are undocumented. Many companies will use the immigration status of their employees against them by threatening that if they bring a claim for any wage violations, their immigration status will be put out in the open. Similarly, once a wage claim is filed, Defendants’ counsel will attempt to obtain information about immigration status through discovery with the hope that prospective plaintiffs will be discouraged from opting-in to a collective action lawsuit brought under §216 of the FLSA. Such threats strike a very real fear in employees which often results in employees allowing their employers to take advantage of them.

It has become clear from the developing case law that the immigration status of plaintiffs is not relevant to a liability determination under the FLSA.

The courts have held that the protections of the FLSA are available to citizens and undocumented workers alike as they are seeking proper compensation for work that has already been performed. The court further found that there was an in terrorem effect of having Plaintiffs produce information regarding their immigration statuses. See Flores v. Albertsons, Inc., 2002 U.S. Dist. LEXIS 6171 (C.D. Cal. 2002). This differs from Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, where the Court held that an award of backpay to illegal immigrants for work “not performed” was against the policies of the Immigration Reform and Control Act and thus immigration status was relevant for the purposes of liability. 122 S. Ct. 1275 (2002).

The federal district court for the Eastern District of Wisconsin has similarly held that an employees immigration status is not relevant to a determination of liability and thus is not a proper subject of discovery. Hernandez v. City Wide Insulation of Madison, Inc., 2006 U.S. Dist. LEXIS 86756 (E.D. Wis. 2006). The Court did leave open the possibility that immigration status may be relevant to a determination of credibility, but noted that immigration status of the plaintiffs, “is not dispositive of their credibility such that it outweighs the harm that disclosure might bring to plaintiffs.” Id.