Fear of Discovery: Immigrant Workers and the Fifth Amendment

Abstract

Do you have papers? Immigrant workers increasingly face this question in civil litigation. Citing the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, which stated that undocumented immigrants cannot recover monetary damages for labor law violations, employers argue that many employment protections no longer apply to this group of workers. Consistent with this argument, employers pose immigration-related questions during discovery, causing an already uneasy class of plaintiffs to cease suing employers in order to avoid answering questions about their immigration status. Professor Cunningham-Parmeter explains how status-based discovery not only inhibits immigrant employees from vindicating their workplace rights but also undermines the employment protections at issue. Without an effective method for controlling the flood of status-based inquiries born of Hoffman, immigrants will continue to opt-out of civil litigation, unwilling to assert even the strongest claims for workplace violations.

Cunningham-Parmeter argues that immigrants can largely combat the intimidating effects of status-based discovery by properly invoking their privilege against self-incrimination. He contends that the policies in support of extending the privilege to the civil context play a prominent role in immigrant-initiated litigation. Civil libertarian values traditionally associated with the privilege such as fairness, privacy, and the prevention of cruelty are threatened when courts grant defendants unfettered access to status-based discovery. After outlining the policies and principles of the privilege, Cunningham-Parmeter explains the process and potential consequences of invocation, including the adverse inferences a court may draw from the witness's silence. Cunningham-Parmeter outlines factors counseling against adverse inferences such as the unreliability of silence and the irrelevance of immigration status to most employment claims. Even if courts infer that silent plaintiffs are undocumented immigrants, Cunningham-Parmeter argues the outcome would improve the current amorphous state of affairs; following Hoffman courts have failed to clearly delineate the employment rights and remedies available to unauthorized immigrants. The inference analysis forces courts to declare whether immigration status matters to the claims at issue. Thus, the privilege serves both protective and explanatory functions by guarding the witness's status-based information, while requiring a determination of immigrant-based employment rights in the post-Hoffman era.

Keywords: immigration, alien, citizen, worker, illegal, race, national, origin, discrimination, Hoffman, retaliation, employ, Title VII, NLRA, FLSA, IRCA, labor, work, INS, DHS, Congress, policy

JEL Classification: J15, J21, J23, J70, J71, J78, J79, K31, K33, K39, K41, K42