People who are not United States citizens or lawful permanent residents, and who lack official authorization to be in the U.S., are often referred to as undocumented immigrants—as well as a variety of less polite terms. Although undocumented immigrants are not officially allowed to live or work in the U.S., they may still be able to avail themselves of the protections of certain federal, state, and local laws. New Jersey courts have held that undocumented immigrants have standing to sue an employer under some laws, but not others. A recent federal appellate court ruling could affect these precedents. A court ruled that the Equal Employment Opportunity Commission (EEOC) has the authority to subpoena employment records in connection with an undocumented immigrant’s discrimination complaint under Title VII of the Civil Rights Act of 1964. EEOC v. Maritime Autowash, Inc., No. 15-1947, slip op. (4th Cir., Apr. 25, 2016).
The Constitution gives the federal government exclusive authority over immigration law and policy, including official determinations of an immigrant’s status and work authorization for immigrants. Employers are prohibited from recruiting, hiring, or employing anyone who lacks work authorization. 8 U.S.C. § 1324a. They must verify every employee’s work eligibility by collecting documentary proof that they are a U.S. citizen, a lawful permanent resident, or an authorized visa holder.
Federal immigration law includes employment discrimination provisions, but they specifically exclude people who lack work authorization. 8 U.S.C. § 1324b(a)(3). In determining whether a particular employment statute applies to undocumented immigrants, courts often look at whether the statute expressly limits its coverage to individuals with work authorization, or otherwise excludes undocumented immigrants.
The New Jersey Law Against Discrimination does not apply to undocumented immigrants, according to the New Jersey Appellate Division, in part because of a statutory provision deferring to restrictions imposed by federal law. Crespo v. Evergo Corp., 841 A.2d 471, 473-74 (N.J. App. 2004); N.J. Rev. Stat. § 10:5-12(a). New Jersey courts have also held that undocumented immigrants are permitted to assert claims under New Jersey’s Prevailing Wage Act and the federal Fair Labor Standards Act, since those claims apply to “work already performed.” Serrano v. Underground Util. Corp., 970 A.2d 1054, 1064 (N.J. App. 2009).
The Crespo decision based its conclusion, in part, on a Fourth Circuit decision holding that undocumented immigrants may not assert employment discrimination claims under Title VII. Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998). The Fourth Circuit’s ruling in Maritime overturns a significant portion of Egbuna, and it may therefore affect New Jersey law.
The complainant in Maritime was one of numerous Hispanic employees who complained to their employer, and then to the EEOC, about racial discrimination. The EEOC issued a subpoena for the complainant’s employment records. When the employer objected based on the complainant’s alleged immigration status, a court case ensued.
The district court ruled for the employer, citing Egbuna, but the appellate court reversed that ruling. The ruling is very limited, allowing the EEOC’s investigation to proceed without making any judgment on the merits of the underlying claim. The court found that nothing in the language of Title VII expressly excludes undocumented immigrants from asserting discrimination claims. It further stated that the employer already allegedly broke immigration law by hiring the complainant, and it could not use that to justify also breaking anti-discrimination law.
If you need to speak to an attorney in New Jersey or New York about a national origin discrimination matter, contact the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997.
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EEOC Settles Sex Discrimination Lawsuit Against New York Metro Area Retailer for $2.1 Million, The New Jersey Employment Law Firm Blog, May 13, 2016
Five Players on U.S. Women’s Soccer Team File Wage Discrimination Complaint, The New Jersey Employment Law Firm Blog, April 22, 2016