Immigration status not discoverable in 9th Circuit
Abuse of injured immigrants is an old story. I once knew an insurance claims manager who was very proud of his tactics in dealing with Hispanic immigrants who had injury claims. First, he told them, "No English, no dinero." Second, he would schedule meetings with claimants and get someone from INS to show up, check their papers, and if possible deport them so that he could get by without paying for their injury. (Yes, he worked for AIG, the company whose recently deposed CEO sent out a memo as Hurricane Andrew approached Miami several years ago, talking about what a great opportunity the hurricane would give the company to raise premiums.)
That claims manager and his soulmates would be disappointed that the U.S. Supreme Court has recently let stand a lower court decision that a plaintiff's immigration status is not discoverable because the "chilling effect of such discovery . . . unacceptably burdens the public interest." Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004). Rivera provides precedent for attorneys bringing claims on behalf of immigrants whose immigration status might be in question. New immigrants are disproportionately employed in highly hazardous occupations and suffer injury and death at rates markedly higher than other workers. Too often, immigrant workers forgoe legitimate claims when their rights are violated. Immigrant workers frequently fear that seeking legal advice may adversely effect their immigration status or that their undocumented status might be exposed. By forgoing legitimate claims, injured immigrants are marginalized further when they are unable to obtain and pay for proper medical care and unable to obtain and pay for vocational training which would allow them to reenter the workforce. As a result, the party responsible for their injuries escapes accountability and the cycle of illegal conduct repeats itself. See article at Safety Lex.
Rivera is a labor case rather than a tort case, it is not binding authority in Georgia or in the 11th Circuit, and Georgia courts tend to give little weight to the "commie" Ninth Circuit Court of Appeals. But courts here may consider the reasoning as some persuasive authority in preventing some forms of abuse of injured immigrants in injury litigation.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).
There are some additional federal & state (Georgia) cases which may serve as persuasive authority in league with Rivera v. NIBCO.
In Earth First Grading v. Gutierrez, 606 S.E.2d 332 (Ga. App. 2002), the court held that an illegal alien cannot be denied workers' compensation benefits when the employer fails to show a causal connection between the employee's initial misrepresentation to the employer regarding their immigration status and the work-related injury. Federal law does not preempt state law on the question of whether an illegal alien may receive workers' compensation benefits, and the phrase "every person" in the Georgia Workers' Compensation Act necessarily includes illegal aliens by defining "employee" as every person in the service of another under any contract of hire or apprenticeship. OCGA § 34-9-1(2).
In Nicholas v. Wyndham Int'l Inc. , 373 F.3d 537 (4th Cir. 2004) the plaintiffs sued the owners of a resort in St. Thomas after their daughter was molested by an employee during the family's stay at the resort. The resort tried to discover the parents' employment & immigration records and the district court issued a protective order denying that request, a ruling which was upheld by the Fourth Circuit. The district court noted that discovery requests aimed at Plaintiffs' immigration status were at "the outer limits of conceivable relevance." Id. at n.3.
In Calderon v. Witvoet, 999 F.2d 1101 (7th Cir. 1993) migrant workers brought suit against their former employers for violations of the Migrant and Seasonal Agricultural Worker Protection Act of 1983 (AWPA) and Fair Labor Standards Act (FLSA). The employers then sought to discover the workers' immigration status. Citing to the Ninth Circuit's ruling in Moorehead v. United States, 774 F.2d 936 (9th Cir. 1985) the court held that none of the provisions in either the Federal Insurance Contributions Act (FICA) or the Social Security Act (which grant employers exemptions from paying Social Security taxes & disqualify migrant farm workers from receiving benefits) permit a roving inquiry into a workers' immigration status.
In In re Reyes, 814 F.2d 168 (5th Cir. 1987) migrant farm workers brought a similar suit as in Witvoet above. The circuit court held that it was improper to compel workers to answer questions concerning citizenship and alienage, including whether their alienage status was documented or undocumented. The information sought was completely irrelevant to the case before the court, could inhibit farm workers in pursuing their rights because of possible collateral & wholly unrelated consequences, and the order compelling such discovery opened for litigation issues which were not present in the case.
In E.E.O.C. v. First Wireless Group, Inc., 225 F.R.D. 404 (E.D.N.Y. 2004) the court ruled that discovery of the claimant's (employees) immigration status was not relevant to the issues in litigation, and the potential for embarrassment and exposure of claimants to potential criminal liability and deportation if their immigration status was found to be illegal could discourage the bringing of EEOC complaints.
In Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y. 2002) employees filed suit for unpaid wages under the Fair Labor Standards Act (FSLA) and the employer sought discovery of the employees' immigration status. The court ruled that discovery regarding employees' immigration status was not relevant to an FLSA claim for unpaid wages for work already performed, and the potential for prejudice from such disclosure far outweighed whatever minimal value the information might have. "If forced to disclose their immigration status, most undocumented aliens would withdraw their claims or refrain from bringing an action such as this in the first instance. See Flores v. Albertsons, Inc., 2002 WL 1163623 at *6. This would effectively eliminate the FLSA as a means for protecting undocumented workers from exploitation and retaliation. (Id.) Until Congress or the Supreme Court clearly determines that the FLSA does not apply to these workers, the prejudice to plaintiff outweighs any potential relevance this information may have to the defense." Id. at 465.
Many of these employers seek to take advantage of undocumented migrant workers because they can pay them sub-standard wages & withhold benefits. Then, when faced with a liability claim, the employer suddenly chooses to exploit their status as an illegal immigrant in an effort to avoid any responsibility.
These cases are not about enforcing immigration laws or securing our borders. They represent a fundamental principle that you cannot exploit another individual (illegal immigrant, documented alien, U.S. citizen or otherwise) for your own personal gain & expect the law to endorse your actions.
