The Illegal Alien Defense

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Defendants sometimes challenge a claimant's legal status during a lawsuit, which is sometimes called "the illegal alien defense." Unlawful status does not bar the suit, but may affect damages.

The question of a plaintiff's immigration status has been addressed by California courts only in the context of a personal injury suit.  In Rodriguez v. Kline, 186 Cal. App. 3d 1145, (1986), the court held that while immigration status did not bar recovery, if the plaintiff was in fact deportable, the proper measure of his damages for loss of future earnings was with reference to lost earnings at his likely wage in Mexico and not in the United States.

An important US Supreme Court decision in 2002 denied an award of back pay to an undocumented worker who had been laid off for his part in a union organizing drive.  Many interpret the case to require back pay in cases under the Fair Labor Standards Act for undocumented workers.  Hoffman Plastics v. NLRB, 535 U.S. 137 (2002).

In September 2002, just over five months after Hoffman was decided, California enacted a statute codifying identical provisions in three sections of its codes:

All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.

Cal. Civ. Code § 3339(a);  Cal. Gov't Code § 7 285(a);  Cal. Lab. Code § 1171.5(a).

A Ninth Circuit case decided after Hoffman held that a defendant employer could not use the discovery process to uncover the immigration status of employees seeking relief under Title VII laws that make discrimination illegal.  Rivera v. NIBCO, No. 02-16532, April 13, 2004.  The court noted that the only possible relevance of immigration status would bear on damages and not liability and therefore it was too early to the right to question the plaintiffs about their immigration status.  The court noted that if the plaintiffs prevailed, but were awarded no monetary damages, that the statute supported an award of attorney's fees.  The court that the scope of Hoffman was likely narrow and the difference between the National Labor Relations Act and the Civil Rights Acts was great and favored a different outcome because of the more significant public policy interests and the statutory mechanism of enforcement that differed between the two statutes.  The court closed by noting that the question of whether Hoffman barred back wages and or lost future earnings for illegal alien employees was an unanswered question.

Interestingly, NIBCO won at trial and the twenty-three Hispanic and Southeast Asian immigrant workers brought a Batson challenge that returned the case to the Ninth Circuit Court of Appeals this time on the question of whether NIBCO's counsel struck certain jurors based on race during jury selection.  Rivera v. NIBCO, Inc., No. 09-15136, March 29, 2010.  The Ninth Circuit found that NIBCO's counsel likely did strike for reasons of race or national origin and overturned the jury's verdict and sent the case back to the District Court for a new trial.

It seems likely, but not certain that the 2002 changes to California's statutory law overturned Rodriguez v. Kline.  But questions remain.

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