California’s population was born outside of the United States2
of labor market participation among the immigrant adults who live here,3
– and the high levels you
would think that plenty of us would be representing immigrants in employment and personal injury cases, and that having such clients would no longer be consid- ered a “niche” practice in the world of plaintiff-side litigation. However, that is not the case.
Immigrants’ lack of access to infor-
mation about their rights, their lack of access to means of enforcing those rights, their linguistic, cultural, or geographical isolation, and their fear of jeopardizing their (or their family members’) immigra- tion status or of being reported to Immigration and Customs Enforcement (ICE) if they are undocumented often cause their rights to go unenforced, and their injuries to go without redress. Moreover, even when immigrants perceive that they have been legally wronged, they often do not know that attorneys like us exist; let alone where to find us. On top of those obstacles, there is lit-
tle doubt that over the last few years, we have seen an upswing in anti-immigrant sentiment. Given the heated and often misleading rhetoric that has characterized much of the public debate about immi- grants and immigration policy, it is not surprising that plaintiff attorneys may shy away from – or at least, may not actively cultivate relationships with – immigrant clients. But the need is tremendous,4
and
thankfully, in most cases, the law is on our clients’ side.5 This article aims to dispel some of the
myths and misperceptions about the rights and remedies available to immigrants in employment and personal injury matters in California, and address some of the ways in which a client’s immigration status may (or may not) have an impact on her legal claims. I also will provide some prac- tical tips on how to anticipate, avoid, and address the other primary obstacle to enforcement of immigrant clients’ rights: defendants aggressively seeking to use dis- covery in order to obtain information about plaintiffs’ immigration status during litigation in order to intimidate plaintiffs
APRIL 2011 The Advocate Magazine — 97
into dropping their claims altogether or accepting less than a fair settlement. They also may seek to use the information to chill participation in the lawsuit by the plaintiff’s co-workers or other witnesses, or to stoke potential jury animus against immigrants at trial. However, as discussed below, California law gives us strong grounds to argue that such information has no place in discovery, or at trial, in the vast majority of cases.
Universal coverage and immigrants As a preliminary matter, it is impor-
tant to understand the legal backdrop against which battles about the relevance and impact of plaintiffs’ immigration sta- tus in employment and personal injury cases are taking place. In 1986, Congress passed the
Immigration Reform and Control Act of 1986 (IRCA), which made it unlawful for an employer to knowingly hire a worker who is not authorized to work in this country and provided for employer sanc- tions against those who did.6
Then, in a
2002 decision, Hoffman Plastic Compounds v. NLRB,7
(“Hoffman”) the U.S. Supreme
Court held that the National Labor Relations Board (NLRB) lacked the authority to award an admittedly undocu- mented worker back pay as a remedy when his employer unlawfully fired him in retaliation for exercising his rights
under the National Labor Relations Act (NLRA). The Court reasoned that, “awarding back pay to illegal aliens runs counter to policies underlying IRCA.”8 Following this case, employers’ attorneys began urging other courts to apply this reasoning to limit the rights and/or remedies of undocumented immigrant workers under other labor and employ- ment laws and eventually, in personal injury cases as well. In the same year that IRCA became
law, the California Court of Appeal answered the question of whether a plain- tiff who is not legally entitled to work in the United States is entitled to recover future lost wages when he prevails in a personal injury action in the affirmative. (Rodriguez v. Kline (1986) 186 Cal.App.3d 1145.) In Rodriguez, the Court held that future wage loss claims may be limited to future earnings in the plaintiff’s country of origin at trial, if the defendant can adduce proof (at a preliminary hearing to be held before the judge, not the jury) that the plaintiff was undocumented at the time of the incident which led to his injury, and the plaintiff cannot prove that he has “taken steps” to correct his unau- thorized status which “might” result in suspension of deportation or removal pro- ceedings.9 The California legislature responded to the Hoffman decision by enacting
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