Representing Undocumented Workers

Representing Undocumented Workers

1. Right to pursue a cause of action of any kind.
   – Exists under 5th and 14th Amendments.
   The word “person” as used in the fifth and fourteenth amendments should be taken to mean literally every human being physically present within the borders of the United States. All aliens-those legally present and those illegally present are entitled to due process of law. Under this reasoning, the federal court decisions in Artega v. Allen, 99 F.2d 509, Prassinos v. District Director of Immigration and Naturalization Service, 289 F.2d 490 (6th Cir. 1961), Martinez v. Fox Valley Bus Lines, 17 F. Supp. 576 (N.D. Ill. 1936). All that is required, is physical presence.Criminal Concerns and 5th Amendment Privileges raised during Litigation Discovery Issues.
2. Deportation
   • Right to hearing, ask for stay/extension.
     In Hong v. Agency for International Development, the Court of Appeals for the Ninth Circuit did just this. An alien found to be deportable had requested a stay of deportation to allow him time to pursue a contract claim. The Immigration Service, however, ordered 166. 193 F. Supp. 416, 420 (N.D. Ohio 1960), affd, 289 F.2d 490 (6th Cir.), cert. denied, 366 U.S. 966 (1961). If a reviewing court wishes, it can avoid the entire question of constitutionality by means of statutory interpretation by holding that the Immigration Act does not allow the I.N.S. to restrict an alien’s right to sue, thereby using the second guideline to overturn the determination. 470 F.2d 507 (9th Cir. 1972). his immediate deportation. The circuit court granted the stay of deportation, reasoning as follows. The order deporting the alien was valid, but the alien had a contract claim which was also valid. This claim could not be adjudicated by I.N.S. since its authority is limited to determinations of deportability. Therefore, unless the court itself delayed the deportation, a legal right would have been lost. The circuit court would not allow the I.N.S. in the performance of its duty to interfere with the alien in the exercise of his right.
   • U Visas (when do they apply?)
3. Liability
   The various federal, state and city anti-discrimination laws do not contain exceptions for illegal immigrants. For example, the main federal anti-discrimination law, Title VII of the Civil Rights Act of 1964, applies to persons “employed by an employer.” The U.S. Equal Employment Opportunity Commission (EEOC) has declared it a “settled principle” that “undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work.”
4. Damages Limited
   • Front Pay / Reinstatement – Not available as a form of recoverable damages
   • Back Pay (Probably not at this time, but maybe)

QUESTION PRESENTED
Whether an undocumented alien may be awarded back pay under Title VII of the Civil Rights Act of 1964 or under Fla. Stat. Ch. 760 for discrimination that occurs during her employment.

SHORT ANSWER
Possibly. Although the Supreme Court decided that back pay is not awardable to an undocumented alien under the NLRA, the Eleventh and other circuits have raised doubt as to whether the opinion prohibiting back pay is applicable to other federal employment statutes such as Title VII. Florida’s policy that employers should be liable for damages to undocumented workers that they knowingly hire further supports the position that such employers should be required to compensation undocumented employees with back pay upon a FCRA violation.
DISCUSSION

1. Award of Back Pay Under Title VII
   Since 1964, Title VII of the Civil Rights Act (Title VII) has prohibited employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. 78 Stat. 255, 42 U. S. C. § 2000e-2(a)(1). In 1973, the Supreme Court asserted that Title VII was clearly intended to apply to the employment of aliens. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 S. Ct. 334, 38 L. Ed. 2d 287 (1973). This conclusion was derived from the use of the term “any individual” in § 703 of the statute, and the negative inference from the exemption within § 702, which provides that Tit. VII “shall not apply to an employer with respect to the employment of aliens outside any State.” Espinoza, at 95. Although this case has been interpreted to also apply to undocumented aliens, see e.g. EEOC v. Restaurant Co., 490 F. Supp. 2d 1039, 1047 (D. Minn. 2007), the interpretation is questionable since the plaintiff in Espinoza was in fact documented. The question regarding whether an undocumented alien is afforded such protection under Title VII has never been directly addressed by the U.S. Supreme Court.
   The Court did, however, discuss whether an undocumented alien may receive back pay under the National Labor Relations Act (NLRA), and has consistently answered this question in the negative. In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), although the court held that undocumented aliens “plainly come within the broad statutory definition of `employee'” contained in the NLRA, it decided that an employer who violated the statute is not required to reinstate any worker who is not authorized to be employed in the United States and accrual of back pay must be tolled during any period when any such worker was not authorized to work. Sure-Tan 467 U.S. 883 at 903-904. This decision, the court explained was due to a conflict of the immigration law policy at that time pursuant to the Immigration and Nationality Act (INA).
   The issue of an undocumented alien’s ability to receive back pay under the NLRA arose again in 2002, after a new immigration policy had been enacted by Congress. The Immigration Reform and Control Act of 1986 (IRCA) prohibited the employment of undocumented aliens by requiring employers to examine specific documents to verify each person’s authorization to work in the United States prior to hiring such person. 8 U.S. C § 1324(a)(1). Further, the Act compels employers to discharge any person it hired upon the discovery of that person’s undocumented status. § 1324(a)(2). Employers who violate the statue may be punished by fines, § 1324a(e)(4)(A) or criminal prosecution. § 1324a(f)(1). An undocumented alien who gains employment by presenting fraudulent documents may also face these penalties. § 1324c(a)(1)-(3); 18 U. S. C. § 1546(b).
   The court in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002) decided that an undocumented alien may not be awarded back pay under NLRA because the award runs counter to policies underlying IRCA. Hoffman Plastic Compounds, Inc. at 149. The court explained, that after IRCA, it became impossible for an undocumented alien to obtain employment in the United States without some party, the alien or employer, directly contravening explicit congressional policies and that awarding back pay to an undocumented alien trivializes immigration laws and condones and encourages future violations. Id. at 150. Before Hoffman was decided, the Fourth Circuit used this same reasoning to decide that an undocumented alien does not have the standing to pursue a Title VII claim regarding an employers’ decision not to hire the undocumented alien. Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998). The court however distinguished an undocumented alien’s standing to pursue a Title VII claim for discrimination that occurs during the hiring process and discrimination that occurs during employment and expressed doubt that the latter should be precluded. Id at 187.
   The dissent in Egbuna believed that there is no conflict between Title VII and the IRCA, particularly noting the IRCA’s legislative history which cautioned that IRCA should not be interpreted as extinguishing undocumented aliens’ rights under federal labor and anti-discrimination statutes:
   The committee does not intend that any provision of this Act would limit the powers of State or Federal labor standards agencies such as the … Equal Employment Opportunity Commission … to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by these agencies.
   Egbuna, 153 F.3d at 188 citing House Comm. on Educ. and Labor, H.R.Rep. No. 99-682(II), at 8-9 (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5758.
   Two years after Hoffman was decided, the issue of the opinion’s effect on the award of back pay under Title VII was brought before the Ninth Circuit. In Rivera v. Nibco, Inc., 364 F.3d 1057 (9th Cir. 2004), although the court was not required to answer the question, since the plaintiffs, in that case, were not seeking back pay, the court explained that back pay is a form of relief under the statute which only goes to the issue of damages, not the employer’s liability. Rivera 364 F.3d at 1069. The court also expressed serious doubt that Hoffman applied to Title VII cases at all. Id at 1067 and 1074. The reason, the court provided, is that the NLRA and Title VII are very different statutes with distinct purposes and remedial schemes. See Id at 1067–1069. (Title VII depends principally upon private causes of action for enforcement while the NLRA authorizes only certain limited private causes of action; Congress armed Title VII plaintiffs with remedies designed to punish and deter employers who engage in unlawful discriminatory acts, including full compensatory and punitive damages in addition to traditional employment law remedies, such as back pay, front pay, and reinstatement; The NLRB, which has limited discretion, awards back pay for NLRA violations while the district court with broad authority to balance competing policies award back pay for Title VII violations).
   A Minnesota District court, agreeing with Rivera, concluded that, since an employee’s entitlement to certain remedies does not affect the determination of whether the employer engaged in discrimination, an undocumented immigrant has the standing to pursue a claim under Title VII but may possibly be precluded by Hoffman from being awarded certain remedies. EEOC v. Restaurant Co., 490 F. Supp. 2d 1039, 1047 (D. Minn. 2007). The court also declined to directly rule on the issue of the back pay reward. Id, at 1046. The court in EEOC v. Restaurant Co. did, however, address the issue of retaliatory discharge in Title VII claims in relation to the IRCA. The employer, in that case, defended its decision to terminate the plaintiff after she had made an internal complaint of a sexually hostile work environment based on the IRCA § 1324(a)(2), which requires employers to discharge a worker found to be undocumented. After the plaintiffs argued that an employer cannot turn a blind eye to its employee’s work authorization status, and then later use it as a pretext to terminate an employee when she complains about sexual harassment, the court was convinced that there remained a material factual dispute as to whether defendant knew about the plaintiff’s immigration status prior to the harassment investigation and that a jury could reasonably infer that defendant’s proffered reason for the adverse employment actions was pretextual. Restaurant Co. at 1051.
   In 2013, the Eleventh Circuit decided in light of the Hoffman opinion, whether its decision in Patel v. Quality Inn S., 846 F.2d 700, 706 (11th Cir.1988), authorizing the award of back pay to undocumented aliens under the Fair Labor Standards Act (FLSA) should be overturned. Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013). The court declined to do so, reasoning that awarding a plaintiff back pay pursuant to FLSA does not run the risk of trivializing immigration laws or condoning and encouraging future violations because the FSLA plaintiff seeks to recover wages for work already performed rather than “attempting to recover back pay for being unlawfully deprived of a job” that he could never have lawfully performed. Lamonica 711 F.3d, at 1308. (When the immigration law violation has already occurred, the award of back pay merely ensures that the employer does not take advantage of the violation by availing himself of the benefit of undocumented workers’ past labor without paying for it in accordance with minimum FLSA standards.) The Eleventh Circuit has not, however, decided whether the decision in Hoffman would preclude the award of back pay to undocumented aliens in Title VII cases. The Eleventh Circuit, in deciding whether a Title VII plaintiff should be awarded back pay, considers that the basic purpose of Title VII relief is to make whole victims of unlawful discrimination and that the Act vests broad equitable discretion in federal courts to do so. See Nord v. United States Steel Corp., 758 F.2d 1462, 1471 (11th Cir. 1985) citing Albemarle Paper Company v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975).
   No case has directly decided that an undocumented alien may not receive back pay under Title VII, when discrimination occurs during the undocumented alien’s employment, such as in a Hostile Work Environment or Retaliation claim. Although the Supreme Court’s opinion in the Hoffman case concerning IRCA’s policy would be the strongest threat to such award, several circuits have raised doubt as to whether Hoffman even applies to other federal employment statutes, including the Civil Rights Act. The Eleventh Circuit has explicitly ruled that Hoffman does not apply to FLSA claims, indicating agreement with the other cases that Hoffman’s scope and application is limited to prohibiting the award of back pay in NLRA cases.
   On the other hand, the reason provided by the Eleventh Circuit to exclude the FLSA from the scope of the Hoffman ruling may potentially be troubling. Although merely dicta, the Eleventh Circuit stated that the reason why awarding back pay to an undocumented alien under the FLSA would not be problematic or in conflict with IRCA is because the award would compensate the FLSA plaintiffs for work she already performed. Within a Title VII claim, such as in this case, the plaintiff does not seek compensation for work performed, but instead seeks back pay, claiming entitlement to the position in which she was wrongfully terminated, as an alternative to reinstatement of her position. This award more closely resembles the award of back pay prohibited in Hoffman. Thus, the Eleventh Circuit may possibly follow the Ninth Circuit and allow undocumented aliens to pursue Title VII claims, but simply exclude the possibility of the remedies of reinstatement and back pay for these plaintiffs.
2. Award of Back Pay under Fla Stat Ch 760.10
   The Florida Civil Rights Act (FCRA) prohibits an employer from discriminating against an individual because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status. §760.10(1)(a). This statute is mirrored after Title VII of the Civil Rights Act and Florida courts look to federal case law construing Title VII as persuasive authority. Florida Dept. of Community Affairs v. Bryant, 586 So. 2d 1205, 1210 (Fla. Dist. Ct. App. 1991) citing School Bd. Of Leon County v. Hargis, 400 So.2d 103, 108 n. 2 (Fla. 1st DCA 1981).
   No Florida case has addressed the issue of awarding back pay to an undocumented alien under the FCRA. The first DCA did decide after Hoffman, that an undocumented alien is still at least entitled, under § 440.02 Fla. Stat., to workers compensation for work-related injuries since IRCA did not preempt such award and Hoffman found benefits other than back pay to be applicable to undocumented aliens. Safe harbor Employer Services I, Inc. v. Velazquez, 860 So. 2d 984, 985-986 (Fla. Dist. Ct. App. 2003). This decision is consistent with Florida’s strong policy that an employer that knowingly employs unlawful labor should not be able to avoid the cost of the injuries it creates, shifts the cost of the damages on the taxpaying public, and gain a superior financial position over employers who operate lawfully. See HDV Const. Systems, Inc. v. Aragon, 66 So. 3d 331 (Fla. Dist. Ct. App. 2011). Under this policy, Florida courts preclude such employer from asserting an employee’s undocumented status as a defensive matter to avoid liability. Id at 66 citing Cenvill Development Corp. v. Candelo, 478 So.2d 1168,1170 (Fla. 1st DCA 1985).
   Florida’s policy purports to support the position that an employer that knowingly hires an undocumented alien should not be able escape liability arising from its violation of the FCRA. However, since other forms of compensation are available to a FCRA plaintiff, this policy may not be enough to make back pay awardable to undocumented aliens under the statute. Further, allowing the undocumented alien to collect the other compensation available under the FCRA would be in harmony with Florida’s rationale in Safeharbor where it stated that Hoffman did not preclude alternative forms of compensation to undocumented aliens.
   CONCLUSION ON BACKPAY FOR UNDOCUMENTED WORKERS
   No case has directly decided whether an undocumented alien may be awarded back pay under Title VII for discrimination that occurs during the undocumented alien’s employment. The Supreme Court’s decision which prohibits an award of back pay under the NLRA is the only authority that is arguably binding on the matter. The Eleventh circuit has since raised doubt as for whether that opinion is applicable to federal employment statutes outside of the NLRA, and other circuits have raised doubt that the opinion applies to Title VII. Florida has not addressed the matter, but has in place a strong state policy that holds an employer liable for damages regarding an undocumented alien that it knowingly hires. This policy is favorable to the position that an undocumented alien should be awarded back pay when the employer knew of the employee’s status.
   • Wages Earned, and liquidated damages – Available
     This was the issue in two recent federal district court cases: Solis v. Cindy’s Total Care, Inc., Case No. 10-CIV-7242 (PAE), 2011 WL 6013844 (S.D.N.Y. Dec. 2, 2011), and Angamarca v. Da Ciro, Inc., Case No. 10-CIV-4792 (RLE), 2012 WL 5077480 (S.D.N.Y. Oct. 15, 2012). In Solis, the court held that an employee’s immigration status was not relevant to his or her claims for unpaid wages under the FLSA.
   • Compensatory – Available
   • Punitive – Available
3. A more concerned Plaintiff
   {Stay quiet or else. Don’t make waves}
4. More hesitant witnesses who are undocumented
   {Stay quiet or else. Don’t make any waves}
   {If you think you have it tough getting a friendly current worker to cooperate, try a friendly undocumented current worker.}
5. Retaliation versus terminating based on the undocumented status
   It will be helpful to explain to opposing counsel that immigration status is irrelevant to the underlying claim and that any threats to turn a worker into INS will be considered retaliation under many state and federal laws. See, e.,g, Sure-Tan v. NLRB, 467 U.S. 883 (1984)(NLRA); Contreras v. Corinthian Vigor Ins. Co., 25 F. Supp 2d 1053 (N.D. Cal. 1998)(FLSA).
   i-9 / eVerify verification process.
   Purpose of eVerify.
   Using eVerify after hire.
   Using undocumented status to terminate after hire.
6. Applicability of Discrimination Based on Immigration Status
   • Means must treat all eligible workers the same
   • Does not mean that if someone is undocumented, they cannot be discriminated from hiring. You can discriminate between undocumented workers and eligible workers as to hiring. You can’t discriminate based on other nonprotected classes.
7. Motions in Limine
   • What to ask for
     No use of word illegal alien, use “Undocumented Worker.”
     Ask not to say Plaintiff is a criminal.
     Not ask any 5th amendment privilege questions