Tree-Trimmer Wants to See Its Workers’ Papers

KNOXVILLE, Tenn. (CN) - A tree-trimming company being sued by Latino workers for back pay has appealed what it calls a "fatally flawed" decision that bars it from forcing those employees to disclose their immigration statuses as part of the trial discovery process.

Earlier this month, U.S. Magistrate Judge H. Bruce Guyton, in the Eastern District of Tennessee, issued a protective order to immigrant workers who sought to keep their immigration status under wraps in a case where they sued their former employer, Baird Tree Co. and Bobby Baird, for unpaid wages.

Baird claims in an appeal filed this week that Guyton should not have even considered the motion for a protective order because no certification was provided showing that the movant workers had made a good-faith effort to resolve the dispute outside of the courtroom.

Although Guyton acknowledged the lack of certification in his order, Baird argues the judge excused the lack of compliance on "totally inadequate grounds," opining that "it appears the parties discussed the protective order issue."

On appeal, Baird contends "there is nothing in the record to show that any discussion was ever held" and that Guyton should have insisted actual certification.

Even then, the employer says, the plaintiff workers would not have proven they were entitled to a protective order, Baird argues.

The company's appeal relies strongly on the underlying case Hoffman Plastic Compounds Inc. v. NLRB.

In the Hoffman case the U.S. Supreme Court ruled that Hoffman had the right to know the legal status of a worker who sued it for lost wages after being laid off for union organizing because paying a worker not legally authorized to work "lost future earnings" ran counter to the Immigration Reform and Control Act.

The amended complaint filed by the immigrant workers in the case against Baird did not ask for lost wages but unpaid wages and overtime, along with damages and attorney fees and expenses.

Guyton found the fact that the workers in this case had already earned the money they sought relevant in his analysis.

He cited Flores v. Amigon, a case that ruled that the immigration status of an employee seeking unpaid wages under the Fair Labor Standards Act was not necessary.

In his order Guyton writes, "The court in Flores further explained the public policy considerations that supported its decision, noting: '[I]t is arguable that enforcing the FLSA's provisions requiring employers to pay proper wages to undocumented aliens when the work has been performed actually furthers the goal of the [Immigration Reform and Control Act of 1986], which requires the employer to discharge any worker upon discovery of the workers' undocumented alien status... If employers know that they will not only be subject to civil penalties ... and criminal prosecution... when they hire illegal aliens, but they will also be required to pay them at the same rates as legal workers for work actually performed, there are virtually no incentives left for an employer to hire an undocumented alien in the first instance.'"

But Baird goes on to question the validity of the protective order on the grounds that the workers are asking for liquidated damages in addition to earned wages.

"Liquidated damages, after all, are not necessarily restricted to earned wages or back pay. Yet by entertaining an award of liquidated damages - and in allowing the protective order to issue notwithstanding these problems - the magistrate judge's logic could well result in the payment to an illegal immigrant of a recovery that was never earned," the appeal states.

"Given the relief that plaintiffs now seek, in light of the demands that plaintiffs presently make and the extremely amorphous and unsettled nature of the liquidated damages being sought by plaintiffs, the Magistrate Judge should have overruled the Motion as either premature or unavailing. Because he did not, the Court should fully credit Baird's objections and disapprove the Magistrate Judge's disposition of this matter," the appeal concludes.

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