Employment Law Daily Employer's unfettered discovery of U visa information would impose undue burden
Friday, September 30, 2016

Employer's unfettered discovery of U visa information would impose undue burden

By Kathleen Kapusta, J.D. Vacating a district court’s order granting in part a chicken processor’s motion to obtain discovery related to its employees’ attempts to acquire U visas—an immigration benefit that can be sought by victims of certain crimes (even undocumented immigrants) who have assisted government authorities in criminal investigations—the Fifth Circuit found the lower court did not address how U visa litigation here might intimidate individuals outside this case, compromising the U visa program and law enforcement efforts. After weighing all of the problems U visa discovery might cause against the employer’s admittedly significant interest in obtaining the discovery, the Fifth Circuit ordered the district court on remand to devise an approach to U visa discovery that adequately protects the diverse and competing interests at stake in this high profile case (Cazorla v. Koch Foods of Mississippi, L.L.C., September 27, 2016, Higginbotham, P.). Back in 2011, the EEOC sued Koch Foods, alleging it had subjected a class of female Hispanic employees in a Mississippi poultry processing plant to various forms of sex-based harassment, including sexual and physical assaults. Male Hispanic employees allegedly were subject to physical abuse as well. Most of the employees in the department at issue spoke little or no English and many were undocumented aliens. Koch Foods sought discovery of efforts by the individual plaintiffs and other aggrieved individuals to seek protection under the U visa statutes. U visas generally entitle their holders and their families to four years of nonimmigrant status; holders may also apply for a "green card" after three years. The court granted discovery in part, concluding that the U visa statute and regulations collectively precluded discovery of U visa records from the EEOC, but that discovery from the individual claimants and plaintiffs could proceed. EEOC. Agreeing with the district court, the Fifth Circuit found that the statute at issue, 8 U.S.C. § 1367, coupled with its implementing regulation, unambiguously barred the EEOC from revealing any information related to the claimants’ U visa applications. Because the EEOC is an agency receiving information under the U visa program, it is bound by the statute’s confidentiality provisions and thus may not "permit use by or disclosure to anyone . . . of any information which relates to" a U visa applicant. Individual claimants. However, because the statute applies only to certain enumerated government officials, and says nothing about whether other individuals may disclose U visa information, the court found it must be read not to preclude such disclosure. While the employees argued that interpreting Section 1367 not to bar discovery from the individual claimants would frustrate the statute’s goal of fostering reporting of abuse, the text was unambiguous so any exploration of purpose was beside the point. Rule 26(c). Turning to the district court’s ruling that Rule 26 allowed discovery of U visa information from the individual claimants, the appeals court noted that while this was an issue of first impression in the Fifth Circuit, case law on the issue was nonbinding, mostly distinguishable, and equivocal even where relevant. As to the district court’s Rule 26(c) balancing analysis, it found that Koch had an appreciable interest in obtaining the discovery, since the claimants’ "motive [was] relevant." Here, the lower court noted that the number of claimants against Koch appeared to have spiked once the EEOC became involved, and because the EEOC has the authority to issue U visas, this was at least some evidence the claimants may have lied in hopes of obtaining them. While discerning no fundamental error in the district court’s analysis, nor in its conclusion that the discovery sought might well have significant probative value, the appeals court pointed out that the "spike in claims" datum, on its own, was not particularly suggestive of mass fraud. Moreover, observed the court, the U visa process contains numerous protections against fraud that should preclude claimants from lying in their applications and the EEOC from abetting applications it knows or suspects to be fraudulent. The court also rejected Koch’s repeated suggestions that the plaintiffs’ claims were so outlandish as to be unbelievable, finding substantial evidence suggests that serious abuse is all too common in many industries reliant on immigrant workers, including the modern-day poultry industry. Nonetheless, the court found it plausible that some undocumented immigrants might be tempted to stretch the truth in order to obtain lawful status for themselves and their families. Thus, the district court did not abuse its discretion in finding U visa discovery relevant and potentially probative of fraud. Public interest in preventing U visa discovery. As to whether the discovery would create an undue burden, the district court reasoned that the claimants did not need to fear being fired once Koch discovered that they sought U visas, since most of them no longer worked for the company and others "may have other protection" or could be sheltered by a protective order. But, said the appeals court, despite the protective order and the protections of the U visa program itself, there remained a serious risk that U visa discovery would cause some claimants or family members to lose their jobs. This risk, however, was a highly speculative one. Not only was it unclear how many claimants remained employed by Koch, and how many would still be working for it by the time U visa discovery takes place, it was uncertain how many in that group may have applied for or received U visas. "Because the U visa applications in this case are entirely hypothetical, the in terrorem effect of discovering them is hypothetical as well," the court reasoned. Nonetheless, said the court, if the claimants have applied for U visas, their jobs may still be on the line, contrary to the district court’s apparent belief. Further, observed the court, all claimants might fear that Koch would report them and their families to immigration authorities if it learns of their U visa applications. Noting that "employers commonly and unlawfully retaliate against irksome workers by reporting or threatening to report them to immigration authorities," the court observed that a protective order would not necessarily quell claimants’ fear of suffering the same fate. And while the district court downplayed their asserted fears of being reported by stressing that any claimants who submitted U visa applications had already revealed their undocumented status to the EEOC and possibly USCIS, the appeals court pointed out that the claimants might not have feared revealing their status only to federal officials who process U visa applications, since those officials apparently are not involved in immigration enforcement. Burden on nonclaimants. More pressing to the appeals court was the fact that the district court did not address how U visa litigation might intimidate individuals outside this litigation, compromising the U visa program and law enforcement efforts more broadly. "These dynamics jeopardize the EEOC’s interests and those of the broader public. The district court could and should have weighed them in its Rule 26 analysis," the court stated. "Thousands apply for U visas each year, and they do so with the assurance that federal authorities will keep their applications confidential," the court explained, noting that "allowing U visa discovery from the claimants themselves in this high-profile case will undermine the spirit, if not the letter, of those Congressionally sanctioned assurances and may sow confusion over when and how U visa information may be disclosed, deterring immigrant victims of abuse – many of whom already mistrust the government – from stepping forward and thereby frustrating Congress’s intent in enacting the U visa program." Considerable evidence suggests that immigrants are disproportionately vulnerable to workplace abuse and, not coincidentally, highly reluctant to report it for fear of discovery and retaliation, the court continued, noting that threats of deportation are among the most familiar and dreaded means by which unscrupulous employers retaliate against immigrant employees. Remanding to the district court to devise an approach to U visa discovery, the court noted that because claimants’ U visa applications would be novel and significant impeachment evidence, it would not forbid U visa discovery outright. At a minimum, however, any U visa discovery must not reveal to Koch the identities of any visa applicants and their families, at least in the liability phase. However, if the trier of fact determines that Koch is liable to the complainants, it would likely be necessary to "de-anonymize" the U visa application discovery for the purpose of proceeding with individual damages determinations, as proof in that regard necessarily must be individualized.

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