Opinion
604691/16
05-14-2018
Valentin Garcia MOLINA and Roger M. Guerrero, individually and on behalf of those similarly situated, Plaintiff(s), v. TWO BROS. SCRAP METAL, INC. ; Rocco Colucci; and/or any related entities, Defendant(s).
Attorneys for Plaintiffs, Laura R. Reznick, Esq., Leeds Brown Law, PC, One Old Country Road, Ste. 347, Carle Place, NY11514, 516–873–9550 Attorneys for Defendants, Scott Lockwood, Esq., 1476 Deer Park Avenue, Ste. 3, North Babylon, NY11703, 631–242–3369
Attorneys for Plaintiffs, Laura R. Reznick, Esq., Leeds Brown Law, PC, One Old Country Road, Ste. 347, Carle Place, NY11514, 516–873–9550
Attorneys for Defendants, Scott Lockwood, Esq., 1476 Deer Park Avenue, Ste. 3, North Babylon, NY11703, 631–242–3369
Jeffrey S. Brown, J.
Defendants move by notice of motion for an order (1) dismissing plaintiffs' class action claims on the grounds that the plaintiffs are unable to act as representatives for any proposed class; and (2) pursuant to CPLR 3124 compelling plaintiffs to provide responses to questions blocked by their attorney at deposition.
This is an action seeking unpaid overtime and other wages under New York's Labor Law on behalf of the named plaintiffs and a putative class. On June 16, 2017, this court issued an order extending plaintiffs' time to file a motion for class certification until pre-certification discovery is complete. In its prior order, the court noted defendants' argument that liquidated damages cannot be demanded on behalf of a class. The court also took note of plaintiff's concession that any claim for liquidated damages will be withdrawn when and if a class is certified, finding that "although the plaintiffs' complaint contains a claim for liquidated damages and thus would preclude class action relief ( Ballard v. Community Hospital Care Referral Serv. 264 AD2d 747 [2d Dept. 1999] ), by plaintiff consenting to strike the portion of the complaint which seeks liquidated damages if the action is certified as a class, there would then be no basis to prohibit this matter as a class action based upon CPLR 901(b) (see Orgera v. John Anthony on the Water, Inc et al., [Sup Ct, Nassau County, Brown, J., June 7, 2013] )."
Relevant to the instant motion is the question of whether the immigration status of the named plaintiffs can act as a barrier to maintaining class claims. The court determines that it does not.
After having deposed the plaintiffs, defendants contend that "it is patently obvious" that the plaintiffs are in this country illegally and that such status precludes them from acting as class representatives. Defendants argue that the Supreme Court's decision in Hoffman Plastic Compounds v. National Labor Relations Board , 535 U.S. 137 [2002] suggests that the federal Immigration Reform and Control Act of 1986 (IRCA) preempts the enforcement of any penalty, such as the liquidated damages sought in the instant action. According to defendants, "this creates an explicit conflict between the plaintiffs and the putative class members" because it would deprive other members of the class the remedy of liquidated damages. The court notes that defendants' current position is at odds with the position they took in opposition to plaintiffs' motion to extend time, wherein they argued that a claim for liquidated damages by any proposed representative would bar class certification. Contrary to defendants' current argument, the inability of an undocumented person to maintain a claim for liquidated damages on behalf of a class presents no greater barrier than the inability of any person, documented or not, to maintain a claim for liquidated damages on behalf of a class. ( CPLR 901[b] ).
In Hoffman , an undocumented worker who had tendered a fraudulent birth certificate at the time of employment brought an action seeking back pay after having been fired for union-organizing activities. ( Hoffman , 535 US 137, 140 ). In finding such relief barred by IRCA, the Supreme Court stated "award[ing] 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 a criminal fraud ... runs counter to policies underlying IRCA ...." ( Id. at 148 ).
Even if defendants' speculation about plaintiffs' immigration status is correct, numerous New York state and federal district court cases have found that any laborer may maintain an action pursuant to New York's Labor Law for unpaid wages, regardless of immigration status or the documentation relied on in obtaining employment. (See Garcia v. Pasquareto , 11 Misc 3d 1 [App. Term, 2d Dept 2004] ["Where, as here, an employee seeks to bring a wages and hours claim against an employer, the public policy of the State of New York and the federal government is that the interest in enforcing wages and hours laws on behalf of all workers is paramount."]; Dabrowksi v. Abax Inc. , 2010 WL 3016782 [Sup. Ct. NY County 2010] ["Even if any of the plaintiffs (representative or proposed) are undocumented, defendants are obligated to pay them wages. There is clear public policy of paying all workers the wages they are entitled to regardless of their legal status."]; Jara v. Strong Steel Doors, Inc. , 16 Misc 3d 1139(A) [Sup. Ct. Kings County 2007] [noting prevailing recognition that the IRCA "was not intended to undermine or diminish in any way labor protections in existing law," including New York law] [aff'd. Jara v. Strong Steel Door , Inc., 58 AD3d 600 [2d Dept 2009] ]; Pineda v. Kel–Tech Const., Inc. , 15 Misc 3d 176 [Sup. Ct. New York County 2007] ["This court therefore prefers to extrapolate from federal and New York State public policy ... a basis for undocumented workers to claim unpaid wages for work they have already performed, even if like plaintiffs here they allegedly proffered fraudulent documents to obtain employment."]; see also Nizamuddowlah v. Bengal Cabaret, Inc. , 69 AD2d 875 [2d Dept 1979] ["Plaintiff's status as an illegal alien for part of the period of his employment does not preclude him from recovery under the Minimum Wage Act."]; Rosas v. Alice's Tea Cup, LLC , 127 F. Supp. 3d 4 [SDNY 2015] ; [ Flores v. Amigon , 233 F. Supp. 2d 462 [EDNY 2002] ; Liu v. Donna Karan Int'l, Inc. , 207 F. Supp. 2d 191 [SDNY2002] ). And the court finds no restrictions in the case law maintaining such a case as a class action. (See Dabrowksi, 2010 WL 3016782 [certifying class even where immigration status of proposed representatives was disputed]; also Jara , 116 Misc 3d 1139(A) [a putative class action] ).
The principal case relied on by the defendants, Hoffman (535 US 137 ), related to a worker seeking back pay for work not performed, rather than violations in payment of wages actually earned. The distinction is critical "because denying undocumented workers the protection of the FLSA would ‘permit[ ] abusive exploitation of workers’ and ‘create[ ] an unacceptable economic incentive to hire undocumented workers by permitting employers to underpay them,’ in violation of the spirit of the IRCA [citation omitted]. This distinction was clear before Hoffman and has been reiterated since." Rosas , 127 F. Supp. 3d at 9 [citing Flores , 233 F. Supp. 2d at 463 ; Colon v. Major Perry Street Corp. , 987 F. Supp. 2d 451, 453 [SDNY 2013] ; see also Garcia , 11 Misc 3d at 2 ["[C]ourts construing Hoffman have consistently held that it has no effect on claims for wages earned but not paid."] ). Indeed, the Court of Appeals, in considering Hoffman 's impact in a New York Labor Law case for lost wages due to severe injuries found "in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, that IRCA does not bar maintenance of a claim for lost wages by an undocumented alien." ( Balbuena v. IDR Realty LLC , 6 NY3d 338 [2006] ). For these reasons, the court finds no basis to disallow the class action on claims in this case.
The second branch of defendants' motion seeks an order compelling the plaintiffs to answer questions posed at their depositions concerning their immigration and residency status, social security numbers, current employers, and personal information presented to defendants during the course of their employment.
The same public policy concerns supporting recovery of earned wages by undocumented workers have led courts to conclude that "discovery into ... immigration status [is] irrelevant and pose[s] a serious risk of injury to the plaintiffs, outweighing any need for disclosure." ( Flores , 233 F. Supp. 2d at 464 ). In this regard, courts have denied disclosure relating to immigration status, passports, visas, social security numbers, and tax records, as well as information about other employers or work history. ( Dabrowski , 2010 WL 3016782 [explaining with regard to immigration status that "any legitimate needs that defendants may have for this information is far outweighed by the chilling effect it will have on these plaintiffs proceeding with their vigorous litigation of their claims"]; Pineda , 15 Misc 3d at 190 ["If federal courts ban discovery on immigration status in unpaid wages cases, the use of fraudulent documents on immigration status to gain employment in unpaid wages cases is likewise irrelevant."]; see also Rosas , 127 F. Supp. 3d at 11 [stating that "tax return information from plaintiffs would serve no obvious purpose other than intimidation" [citations omitted] ]; Francois v. Mazer , 2012 WL 1506054 [SDNY 2012] [granting motion to exclude argument or evidence related to immigration status]; Flores , 233 F. Supp. 2d 462 ; Liu , 207 F. Supp. 2d at 192–193 [finding that the potential prejudice in revealing immigration status far outweighed the minimal probative value in a wage and hour case] ). The request for current employment information likewise has no valid basis. (See Rosas , 127 F. Supp. 3d at 12 ). Moreover, counsel's questioning of prospective jurors at voir dire can be formulated to ascertain any potential acquaintance with the plaintiffs without the need of disclosing plaintiff's current and former employers.
Finally, plaintiff's cross-motion for a protective order is denied as untimely made. The defendants' motion, returnable on April 27, 2018, was served on April 2, 2018 and contained the requisite 2214(b) notice for service of answering affidavits seven days before the return date, i.e, by April 20, 2018. As the cross-motion was electronically filed no earlier than the evening of April 21, 2018, it is untimely. (See CPLR 2215 ; Bucceri v. Frazer , 297 AD2d 304 [2d Dept 2002] ). This does not preclude plaintiffs from making an appropriate motion on notice in the future, should the need arise.
For the foregoing reasons, it is hereby
ORDERED, that the defendants' motion to dismiss the class action claims and to compel further deposition of the plaintiffs is denied in its entirety, and it is further
ORDERED, that plaintiffs' cross-motion for a protective order is denied, without prejudice.
This constitutes the decision and order of this court.