Monday, October 7, 2013
Immigration Article of the Day: Competing Concerns in Employment Litigation: How Courts Are Managing Discovery of an Employee's Immigration Status by Thomas A. Doyle
Competing Concerns in Employment Litigation: How Courts Are Managing Discovery of an Employee's Immigration Statusby Thomas A. Doyle, Wexler Wallace, LLP 2013 28 ABA Journal of Labor & Employment Law 405, Spring 2013
Abstract: When an employee brings a lawsuit to enforce workplace rights, can an employer-defendant ask questions about the employee's immigration status? Workers may be intimidated by the prospect of free-wheeling discovery into their immigration status, and some workers may even forgo litigation entirely, just to avoid the discovery process. In recent years, many federal courts have heard discovery disputes over immigration status. From the leading 9th Circuit case (Rivera v. NIBCO, 364 F.3d 1057 (9th Cir. 2004)), through more recent decisions, this article reviews the issues that courts weigh when ruling on these discovery disputes in employment litigation. The article also proposes a framework for some bright-line rules to govern these discovery issues in future cases.