Solis v. Cindy's Total Care, Inc. et al

Filing 47

OPINION AND ORDER: For the reasons stated in the foregoing, the Court reaffirms its October 31, 2011 Opinion and Order granting the Secretary's motion in limine. (Signed by Judge Paul A. Engelmayer on 12/2/2011) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
HILDA L. SOLIS, Secretary of Labor, United States
:
Department of Labor,
:
:
Plaintiff,
:
-v:
:
CINDY’S TOTAL CARE, INC., d/b/a CINDY’S NAM
:
SAENG SIM, NAM SAENG SIM, individually, and
:
BYUNG SOOK KIM, individually,
:
:
Defendants.
:
:
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10 Civ. 7242 (PAE)
OPINION AND ORDER

PAUL A. ENGELMAYER, District Judge:
This Opinion and Order supplements the Court’s Opinion and Order of October 31, 2011
(Dkt. 42). Specifically, it amplifies on the Court’s reasoning in granting the motion in limine of
the plaintiff Secretary of Labor (“Plaintiff” or “the Secretary”) to exclude evidence as to the
immigration status of the employees whose work hours are at issue in this Fair Labor Standards
Act case.
I.

Background
At a status conference held on September 15, 2011, the Court established a pre-trial

schedule under which motions in limine were due October 14, 2011. On October 12, 2011, the
Secretary moved in limine for an order barring the defense from introducing evidence as to the
immigration status or national origin of any of the defendants’ employees and from questioning
employee witnesses as to these subjects at trial (Dkt. 27). The Secretary’s motion was prompted
by the defendants’ (“Defendants” or “Cindy’s”) Answer to the Complaint, in which the defense
identified the employees’ immigration status and national origin as an affirmative defense. By

letter to the Court dated October 25, 2011, the defense stated that it was withdrawing that
affirmative defense and consenting to its dismissal, and that it no longer opposed the Secretary’s
motion in limine. The Court endorsed that letter (Dkt. 41). The Court nevertheless sua sponte
reviewed the relevant statutory provisions and precedents. On October 31, 2011, the Court
issued an Opinion and Order, explaining why evidence of immigration status or national origin,
if offered, would have been excluded (Dkt. 42).
A bench trial in this matter began on November 29, 2011. On the first day of trial, the
defense moved to withdraw its consent to the motion in limine. It asked the Court to reconsider
its ruling in light of the opinions in Hoffman Plastic Compounds, Inc. v. National Labor
Relations Board, 535 U.S. 137 (2002), and NLRB v. Domsey Trading Corp., 636 F.3d 33 (2011).
The Court declined to permit the defense to withdraw that consent. The Court noted that the
defense was not relying on an intervening change of law, as both decisions had predated the
motion in limine, and the Secretary had, in fact, cited Hoffman in her memorandum in support of
that motion. However, the Court stated that, in the interests of justice, it would sua sponte
review anew those two decisions.
The Court has again reviewed those opinions. For the reasons that follow, the Court
continues to believe that the immigration status and national origin of the employees in this case
is irrelevant and must be excluded. As a result, the Court’s October 31, 2011 Opinion and Order
stands. The Court has, however, concluded that there is value in supplementing the analysis in
its initial Opinion and Order, to more fully explain why the decisions in Hoffman and Domsey
are consistent with this result. This Opinion and Order supplies that analysis. 1

1

On November 30, 2011, the second day of trial, the Court notified counsel from the bench that
it would adhere to its earlier ruling, and briefly explained its reasons for concluding that Hoffman
and Domsey are consistent with that ruling.
2

II.

Discussion
In Hoffman, the employer petitioned for judicial review of a determination by the

National Labor Relations Board (“NLRB” or “the Board”) awarding backpay to an
undocumented immigrant employee who had fraudulently gained employment in the United
States by tendering the birth certificate of another person. The backpay ordered by the NLRB
was measured from the date of the employer’s unlawful termination of the employee up to the
later date when the employer had discovered that the employee was not authorized to work in the
United States. See Hoffman, 535 U.S. at 140-42. On appellate review, the Supreme Court held
that federal immigration policy, as reflected in the Immigration Reform and Control Act of 1986
precluded the NLRB from awarding such backpay. The Hoffman Court characterized the issue
as follows: “The Board asks that we overlook [the fact that under the IRCA it is impossible for
an undocumented alien to obtain employment without either the employee or the employer
contravening federal policy], and allow it to award backpay to an illegal alien for years of work
not performed, for wages that could not lawfully have been earned, and for a job obtained in the
first instance by a criminal fraud.” Hoffman, 535 U.S. at 148-49.
The facts of Hoffman materially differ from those here. Most centrally, in Hoffman, the
backpay award that was overturned exclusively covered a post-termination time period. The
Supreme Court held that it would be inconsistent with federal immigration law to pay an
employee for work not performed where, under immigration law, the employee was ineligible to
perform that work. The same logic prevailed in Domsey, which relied on Hoffman. There,
approximately 200 employees of the defendant company went on strike, alleging that the
defendant had committed unfair labor practices. Domsey Trading Corp., 636 F.3d at 35-36.
After the strike, the employees made an unconditional offer to return to work, which the

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defendant subsequently rejected. Following an NLRB order to reinstate the striking workers, the
Board held a hearing to determine the backpay owed. In the hearing, Domsey sought to
introduce evidence that several striking employees had not been legally authorized to work in the
United States during the backpay period; however, the Administrative Law Judge (ALJ)
excluded this evidence as irrelevant. On review, the Court held that the NLRB had abused its
discretion by failing to remand the case to the ALJ for further proceedings consistent with
Hoffman.
As in Hoffman, the backpay award in Domsey pertained only to a period of time
following the subject employees’ termination. In the present case, by contrast, the backpay
award sought by the Secretary is exclusively for work that was performed. The Secretary’s
theory for seeking backpay is that, between mid-2007 and mid-2010, Cindy’s compelled its
manicurists and pedicurists to work overtime hours, but did not pay them the time-and-a-half
wages that the FLSA requires for hours worked in excess of forty hours in one week. The
Secretary further alleges that this lapse on Cindy’s part was willful; earlier in 2007, Cindy’s had
entered into a “back wage compliance and payment agreement” with the Department of Labor
under which it paid $45,000 to the Department for distribution to Cindy’s employees for unpaid
overtime.
Under these circumstances, permitting a claim for backpay on behalf of undocumented
workers who earned, but were not paid, overtime wages vindicates not only the policy
underlying the FLSA but also federal immigration policy. The FLSA’s stated purpose is to
protect workers from substandard wages, and to prevent the payment of substandard wages from
being used as “an unfair method of competition” against law-abiding competitors. 29 U.S.C. §
292(a)(3); see Op. & Order 3. Precisely those ills would arise if an employer were allowed to

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assert a defense under the FLSA on the grounds of the employee’s immigration status. Such an
employer would effectively be immunized from its duty under the statute to pay earned wages,
and would thereby be able to undercut law-abiding employers who hired lawful workers, as
those workers would not be disabled from vindicating their FLSA rights. The FLSA was clearly
designed to prevent such unfair competition and the unjust enrichment of employers who hire
illegal workers so as to pay substandard wages.
Further, as a matter of immigration law, denying backpay for earned overtime based on
an employee’s illegal immigration status creates backwards incentives. See Op. & Order 3.
Under such a regime, an unscrupulous employer seeking to minimize wages would have a strong
temptation to hire illegal workers. See id. By contrast, where illegal workers are able to
vindicate the right to overtime pay conferred by the FLSA, there is no such perverse incentive.
This policy consideration is not implicated nearly to the same degree by the fact pattern at issue
in Hoffman and Domsey. There, (1) the work to which the NLRB’s backpay remedy related was
never was performed by the employees; and (2) the issue at hand was whether such a remedy for
a violation of the National Labor Relations Act (NLRA) properly balanced the competing policy
goals of federal labor and immigration law. 2
As a separate point of distinction, both Hoffman and Domsey arose in the context not of
litigation aimed at recompensing workers for historical violations of the FLSA, but in the context

2

There is an independent factual distinction worth noting. In Hoffman and Domsey, the
evidence was that the employee had obtained employment through criminal fraud directed at the
employer. The defendant here, Cindy’s, has made no such allegation. Rather, the affirmative
defense that Cindy’s put forth (before withdrawing it) was simply that its employees were illegal
aliens. This omission is telling. The Court is left with the impression that Cindy’s, in hiring the
manicurists and pedicurists whom it asserts were illegal aliens, at best turned a blind eye to their
immigration status. The evidence at this week’s trial – in which none of the five employee
witnesses who testified, all speakers of Mandarin Chinese, had any facility speaking or reading
English – did nothing to disturb this impression.
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ofjudicial review of agency administrative action under the NLRA by the NLRB. See Hoffman,
535 U.S. at 140-42; Domsey, 636 F.3d at 34-35. Thus, the Supreme Court in Hoffman held that
the NLRB abused its discretion in fashioning the remedy of awarding backpay to an
undocumented former employee because the Board lacked authority to contravene federal
immigration policy. See Hoffman, 535 U.S. at 144 (noting that the Court has "never deferred to
the Board's remedial preferences where such preferences potentially trench upon federal statutes
and policies unrelated to the NLRA").
The present case, by contrast, presents no issue as to the limit of an agency's remedial
discretion where a proposed remedy was in tension with a separate federal statute. Rather, this
litigation is brought to vindicate a statute whose plain text extends its protection and remedies
(including as to earned overtime pay) to "any individual" employed by an employer, without
qualification. 29 U.S.C. § 203(e); see Op. & Order 2. As the Court noted in its initial decision
on this motion, excluding undocumented workers from the Act's protection would be
inconsistent with basic tenets of statutory construction. See Op. & Order 2.

CONCLUSION

For the reasons stated in the foregoing, the Court reaffirms its October 31, 2011 Opinion
and Order granting the Secretary's motion in limine.

SO ORDERED.

fwJA~

Paul A. Enge1mayer
United States District Judge

Dated: December 2, 2011
New York, New York

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