Employment Law Daily FLSA plaintiff-employees protected from producing tax IDs, other discovery aimed at immigration status
Monday, September 25, 2017

FLSA plaintiff-employees protected from producing tax IDs, other discovery aimed at immigration status

By Lorene D. Park, J.D.

In an FLSA suit against a Mexican restaurant, a federal district court in Kentucky granted a protective order precluding the employer from inquiring into the plaintiffs’ tax identification information and information concerning their relatives. Such information is closely linked to immigration status, noted the court, and the employer’s inquiry “presents a danger of intimidation that can inhibit plaintiffs in pursuing their rights” (Palma v. Roman, September 19, 2017, Whalin, D.).

The employees, who worked as servers at a Mexican restaurant, filed suit alleging the employer failed to pay them minimum and overtime wages in violation of the FLSA. They claimed the restaurant incorrectly applied a tip credit toward their wages by failing to pay the required $2.13 “cash” wage. They also claimed the employer retaliated against one plaintiff by confiscating his tips and telling other Mexican restaurants in the area about the lawsuit with the intent of blacklisting him from future employment.

Discovery dispute over tax ID, family info. Discovery in the suit has been contentious and, after one plaintiff was deposed, the plaintiffs filed a motion for a protective order. Apparently, in the plaintiff’s deposition, the employer sought his Social Security Number, information about his wife, including her place of work and whether she had children. The employer also sought the identities and residences of any of his family members.

Means of harassment? In their motion, the plaintiffs seek protection for: (1) Social Security Numbers/tax identification numbers; and (2) the identity and contact information for their relatives and their employers. They argued that this information is not relevant to any of the claims and defenses in this suit and asserted that the employer’s inquiries were an attempt to intimidate them and harass them. The plaintiffs also claimed the discovery was being used as a means to further retaliate against them by securing information about their immigration status.

Seeking immigration status would chill FLSA claims. With respect to the SSN information, the plaintiffs argued that because tax identification information is closely linked to immigration status, the disclosure of this information would be prejudicial and would create a “chilling effect for any other prospective FLSA plaintiff.” The court agreed.

Granting the plaintiffs’ motion for a protective order, the court explained that numerous district courts have found that “all employees, regardless of their immigration status, are protected by the provisions of the FLSA,” and permitting inquiry into information that may influence immigration status “presents a danger of intimidation that can inhibit plaintiffs in pursuing their rights.” The court further noted that the plaintiffs did not appear to dispute the relevancy of tax returns and W-2s, and their concern was mainly with the repeated attempts to obtain their SSNs. Moreover, they stated a willingness to produce redacted copies of their tax returns and had already produced redacted copies of their W-2 forms.

Concluding that the disclosure of the plaintiffs’ social security numbers would cause “unreasonable embarrassment and oppression,” the court found good cause for a protective order barring discovery concerning their Social Security numbers.

Family member information also protected. Like the Social Security numbers, the court found that the identity and contact information for the plaintiffs’ family members and their employers was also warranted. With respect to the one plaintiff’s wife, who had been a plaintiff and was a potential witness, the plaintiffs had already produced the contact information. They also produced the information for other potential witnesses, as required by Rule 26, but information on other individuals would not be relevant to the claims or defenses in this lawsuit and could have the chilling effect of inhibiting the plaintiffs from pursuing their rights for fear of retaliation against their families.

Confidentiality agreement would not help. The employer also asserted that, if the court found the requested information should be restricted, the defense would be willing to agree to receive such information under a confidentiality agreement. But in the court’s view, such an agreement in these circumstances would do little to “abate the in terrorem effect of the inquiries into Plaintiffs’ current status and the status of their relatives.”

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