The District Court recently held that immigration status is irrelevant to an employee’s ability to assert a putative collective action under the Fair Labor Standards Act (FLSA), rejecting the defendants’ argument that a 2002 U.S. Supreme Court decision precludes undocumented workers from receiving awards of back pay.
In Lin v. Chinatown Restaurant Corporation, two employees of a restaurant alleged minimum wage and overtime claims against their employer on behalf of a putative class of similarly situated employees. The defendants sought to compel discovery concerning the named plaintiffs’ immigration status, arguing that the information was relevant because Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), barred back pay awards to undocumented immigrants.
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 (NLRA). The Supreme Court’s decision was premised on the conflict between federal immigration policy, as expressed in the Immigration Reform and Control Act of 1986 (IRCA), and permitting illegal aliens to recover back pay wages. The Court explained that to “award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by criminal fraud” would run counter to the policies underlying the IRCA.
The District Court examined and rejected many of the arguments accepted by other courts in declining to extend Hoffman to the FLSA context. For example, the Court found that FLSA cases could not be distinguished based on the fact that Hoffman concerned back pay for time that would have been worked had the employees not been terminated, as opposed to time actually worked, because the employees’ wages were not lawfully earned under federal immigration policy in either case.
The Court nonetheless found Hoffman inapplicable because back pay damages under the NLRA are discretionary, whereas they are mandatory under the FLSA. Administrative law principles preclude the NLRB and other agencies from using their discretion in a manner contrary to congressional policy. In contrast, the FLSA provides that an employer who violates its minimum wage provisions “shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation.” Therefore, to the extent a plaintiff is able to successfully present an FLSA case, a court must award 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 that information.
The District Court’s decision clarifies that the FLSA protects illegal immigrants, but it could have the unintended consequence of making legitimate efforts to defend against class certification more difficult, as the broad language used by the Court would seem to prohibit discovery concerning immigration status for all purposes, including the purpose of showing differences among putative class members.