Employment Law Daily ICE detained wage-hour plaintiff during break from court-ordered deposition, petition alleges (1)
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Thursday, August 22, 2019

ICE detained wage-hour plaintiff during break from court-ordered deposition, petition alleges

By Pamela Wolf, J.D.

The habeas petition also contends that the arrest and detention of the former employee who sued his restaurant employer and its owner/operator—allegedly a former government agent—for unpaid wages, was prompted by the defendants’ retaliatory tip.

A 45-year-old former resident of China who has lived in New York for more than 18 years was detained by Immigration and Customs Enforcement (ICE) agents during a lunch break from his court-ordered deposition in a collective action against his former employer for unpaid minimum and overtime wages under the FLSA and the New York Labor Law (NYLL), according to a habeas corpus petition filed in the Northern District of New York on August 13.

The ICE arrest and detention, which allegedly runs counter a 2011 memorandum of understanding (MOU) between the U.S. Departments of Homeland Security and Labor, was purportedly prompted by a retaliatory tip from the restaurant and its owner/operator, allegedly a former FBI/government agent, whom the employee sued in the collective wage and hour action.

Asylum seeker. The employee claimed to have fled lifelong persecution by the Chinese communist regime. In September 2001, he was arrested by U.S. immigration authorities at the Los Angeles International Airport and released after about a month.

Detained during wage-hour deposition. Fast forward to August 12, 2019, when the employee reported for a court-ordered deposition scheduled in Albany, New York. During a lunch break, an ICE deportation officer allegedly trailed the employee and ordered that he be taken into custody, according to the habeas petition, which was filed by the employee’s lawyer, John Troy, as his next friend. The employee has allegedly been in ICE custody since then.

ICE tip in retaliation. The alleged back story on the litigation in this case is important. The employee initially filed his wage and hour claim against his employer, Ichiban Restaurant, and its over/operator (the alleged former government agent) with the New York State Department of Labor. In 2016, while the NY DOL investigation was pending, the owner/operator allegedly called a Chinese immigrant worker from the employee’s hometown to pass a message to the employee that if he dared to attend the NY DOL meeting, the owner/operator would be calling ICE to arrest him.

As a result, the employee did not attend the NY DOL hearing, according to the habeas petition. The NY DOL, which reportedly had found numerous violations of the NYLL by owner/operator and the restaurant, with the restaurant owing the employee substantial damages, then dismissed and terminated the employee’s case.

ICE-DOL MOU violated? According to the habeas petition, ICE and the US DOL have entered into an MOU, under which ICE has agreed to “continue its existing practice of assessing whether tips and leads it receives concerning worksite enforcement involve a worksite with a pending labor dispute” and “to be alert to and thwart attempts by other parties to manipulate its worksite enforcement activities for illicit or improper purposes.” ICE also agreed to “continue its existing practice of assessing whether tips and leads it receives concerning worksite enforcement are motivated by an improper desire to manipulate a pending labor dispute, retaliate against employees for exercising labor rights, or otherwise frustrate the enforcement of labor laws,” the habeas petition notes about the MOU.

The employee’s lawyer points to the alleged earlier retaliation threat by owner/operator and the restaurant that they would provide tips and leads to ICE if the employee pursued his labor rights, saying the threats successfully intimidated the employee out of pursuing his labor rights on at least one earlier occasion.

The habeas petition alleges that the owner/operator and the restaurant used this recent opportunity—the employee’s court-ordered deposition—to tip off ICE to his location in an effort to frustrate the employee’s enforcement of labor laws by pursuing civil litigation.

The employee’s attorney believes that ICE failed in its duty to be alert to and thwart the owner/operator’s and the restaurant’s retaliatory attempts to manipulate its enforcement process, contrary to existing policy referred to in the MOU.

Reasons supporting release. The habeas petition cited several reasons why the employee should be released from ICE detention, including that his wage-and-hour collective action remains pending; he is a critical witness in that case; and if he is removed by ICE, his ability to continue communicating with his attorneys about the case will be practically and technically very difficult, if not impossible. Other parties will also be severely hindered in getting testimony from the employee, according to the petition.

Moreover, if the employee remains detained in ICE custody or is removed from the U.S. to the People’s Republic of China, he will face significant obstacles to his presentation of evidence in the trial of the related case, the petition states. The employee may be barred by U.S. law from re-entering the country to present testimony in person, and he may be barred by China’s law from presenting remote testimony.

Further, the employee’s detention is not justified by any compelling governmental interest that would overcome his right to seek justice in his employment rights case, the petition asserts. The employee is allegedly a loving husband who is far from being a flight risk or danger to the community, and his detention by ICE was an abuse of the agency’s discretion.

The law firm representing the employee told Employment Law Daily that it is in the process of preparing other court filings related to the ICE detention.

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