Cunningham-Parmeter on Using the 5th to Protect Immigrant Workers

Keith Cunningham-Parmeter (Willamette) has just posted on SSRN his article Fear of Discovery: Immigrant Workers and the Fifth Amendment (forthcoming Cornell Int'l L.J.).  Here's the 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 stemming 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 the Fifth Amendment privilege against self-incrimination provides the most effective method for serving immigrants' competing litigation interests: protection from intimidation and vindication of substantive employment rights. 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 ascribed to 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 state of affairs by clarifying the courts' position on the relevance of status. 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.

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