Rights — continued from Previous Page
FivE CiTES TO hAvE in yOur POCkET (to protect your immigrant clients)
Labor Code § 1171.5, Civil Code § 3339, Government Code § 7285 (statutes passed in 2002 clarifying that immigration status is irrelevant to rights and remedies under California labor, employment, and other civil laws, and barring discovery absent showing of clear and convincing evidence that the inquiry is necessary to comply with federal immigration law)
Farmer Bros. v. WCAB, 133 Cal.App.4th 533 (2005) (immigration status irrelevant to workers’ compensation damages)
Reyes v. Van Elk Ltd., Co., 148 Cal.App.4th 604 (2007) (immigration status is irrelevant to prevailing wage claims under California Labor Code and 2002 statutes are not preempted by Immigration and Reform Control Act of 1986)
Hernandez v. Paicius, 109 Cal.App.4th 452 (2003) (abuse of discretion for the trial court to allow evidence of immigration status where plaintiff had waived economic damages)
Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004) (finding immigration status irrelevant to liability under Title VII and affirming protective order)
• Does the defendant know your current home address or place of work? Knowing your client’s immigration
status allows you to make better-informed choices about how to plead her allega- tions and causes of action. In drafting the complaint, it is important to: • Avoid references to your client’s immi- gration status or to immigration-related
• What documentation, if any, of identity, lawful presence, work authorization, and/or citizenship, did you provide to your employer? How did you obtain that documenta-
tion?
• Did you ever provide a Social Security Number (SSN)? How did you obtain that number?
• Do you have a California driver’s license or other state-issued identification?
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issues. Although this may seem so obvious as to go without saying, plead only the minimum set of facts necessary to state each claim. Do not insert needless refer- ences to your client’s ethnicity, country of origin, entry into or travel outside the United States, prior employers, tax filings, or public benefits received, as discovery into those matters could prove highly prejudicial if it revealed deportability or any prior immigration violations. • Weigh the pros and cons of seeking back pay, front pay, and future lost wages. If your client’s claims for back pay – that is, wages that would have been earned but for the unlawful termination or non-work- related injury – are minimal in nature, discuss with her the possibility of choos- ing not to include them. If your client’s non-back pay claims predominate, the potential benefits of dropping back pay allegations and thereby removing one likely argument for immigration-related discovery may outweigh the prospect of an insubstantial back pay recovery. Likewise, defendants can be expected to argue that seeking front pay and future lost earnings “opens the door” to immi- gration-related discovery inasmuch as these remedies are deemed to be predi- cated on a prospective entitlement to work in the United States.12
Thus, you may
wish to weigh the relative benefits of seek- ing such remedies should they be of lesser importance to your client’s goals overall. • Pleading anonymously, or as a collective
action. There is authority for the position that Doe pleading is proper when doing so is necessary to shield the identities of plaintiffs who are vulnerable to employer reprisal, including the threat of deporta- tion. See Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1067-71 (“complaining employees are more effectively protected from retalia-
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