Could barring evidence in court of undocumented workers’ immigration status actually prevent employers from hiring illegal immigrants? It could, according to one Illinois district court judge.

U.S. Magistrate Judge Sheila Finnegan has barred evidence regarding a plaintiff’s immigration status in a case involving a claim for unpaid wages under the Fair Labor Standards Act, ruling that the evidence was “not relevant to a claim for unpaid wages under the FLSA.” Kim v. Hakuya Sushi Inc. et al., No. 1:15-cv-03747 (N.D. Ill. July 5, 2017). Her opinion mirrored the language of other cases finding that “immigration status has generally been protected from discovery” in FLSA claims. See, e.g., Rosas v. Alice’s Tea Cup, LLC, 127 F. Supp. 3d 4, 9 (S.D.N.Y. July 6, 2015). According to Judge Finnegan, denying illegal workers the protections of the FLSA would “create an incentive for employers to hire illegal workers so they could pay them less than minimum wage, in contravention of laws designed to reduce illegal immigration.”

This trend of barring evidence of an individual’s immigration status extends beyond the context of the FLSA. For example, the Fifth Circuit Court of Appeals upheld a lower court decision that evidence of a plaintiff’s immigration status should be barred in the context of a Title VII claim. Cazorla v. Koch Foods of Miss., L.L.C., 838 F.3d 540, 556 (5th Cir. Sept. 27, 2016) (confirming E.E.O.C. v. Rest. Co., 448 F. Supp. 2d 1085, 1087 (D. Minn. 2006)). Similarly, courts have held that plaintiffs in employment discrimination suits are not compelled to disclose the accuracy of their Social Security numbers because, “‘even though such immigration status might be relevant [to credibility], it is a potential weapon for harassing and intimidating individuals and because there [are] other tools for impeachment that would not implicate the plaintiffs’ immigration status.’” Jimenez v. Brooks, 2016 Conn. Super. LEXIS 581, *18 (Conn. Super. Ct. Mar. 15, 2016) (quoting E.E.O.C. v. First Wireless Group, Inc., 2007 U.S. Dist. LEXIS 11893 (E.D.N.Y. Feb. 20, 2007)).

The Supreme Court of Washington has gone one step further. It has publicly endorsed a proposed new rule that would exclude evidence of a party’s immigration status from all civil and criminal cases (with a few exceptions). The Court said the new rule “would promote equitable access to justice by removing the potential for racial and ethnic stereotyping that inevitably results from the unnecessary injection of immigration status evidence into the fact-finding process.” New Rule of Evidence 413 — Immigration Status, 2017 Wash. LEXIS 631, *7 (Wash. June 1, 2017).

Whether barring evidence of immigration status from FLSA claims, Title VII claims, or civil litigation altogether, there is an undeniable trend towards protecting immigrants in our justice system.

 

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Photo of Ellison F. McCoy Ellison F. McCoy

Ellison McCoy is a Principal and Litigation Manager in the Greenville, South Carolina, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. Mr. McCoy has represented employers in litigation matters before state and federal administrative…

Ellison McCoy is a Principal and Litigation Manager in the Greenville, South Carolina, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. Mr. McCoy has represented employers in litigation matters before state and federal administrative agencies and various state and federal trial and appellate courts. Mr. McCoy devotes a significant amount of his practice to assisting employers with disability practice management, particularly including issues arising under the Americans with Disabilities Act and Family and Medical Leave Act.

Learn more about Mr. McCoy on the Jackson Lewis website.

Photo of O. John Norris, III O. John Norris, III

O. John Norris, III, is a Principal in and the Litigation Manager for the Memphis, Tennessee, office of Jackson Lewis P.C. He is an experienced litigator who handles management-side labor and employment law cases of all types.

Mr. Norris regularly handles state and…

O. John Norris, III, is a Principal in and the Litigation Manager for the Memphis, Tennessee, office of Jackson Lewis P.C. He is an experienced litigator who handles management-side labor and employment law cases of all types.

Mr. Norris regularly handles state and federal lawsuits, arbitrations, and administrative claims regarding age, race, gender, or other types of discrimination or harassment, as well as disability accommodation issues. Mr. Norris devotes a portion of his practice to non-competition agreements, non-solicitation agreements, employee raiding issues, trade secrets misappropriation, and similar issues, having litigated such matters in various state and federal courts and before the National Association of Securities Dealers, now known as the Financial Industry Regulatory Authority. He also has significant experience representing employers in collective and class actions under the Fair Labor Standards Act and state law for wage-related claims. In addition, Mr. Norris routinely works with clients to prevent litigation or other claims by establishing effective policies, procedures and agreements and counsels clients regarding garnishment issues.

While attending law school, he served as Research Editor of the University of Memphis Law Review. He also received the American Jurisprudence Award in Constitutional Law and was selected for Who’s Who Among American Law Students.