33 Trial Lawyer • Summer 2022 See Unauthorized p 34 their work status ‘may not be used’ for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, or related conduct.” Arizona v. United States, 5678 US 387, 405 (2012) (citing 18 USC § 1546(b) and 8 USC §§ 1324a(b)(5), (d)2(F)-(G)). This should mean even if Betty used fake documents to get employment, that information should not be admitted against Betty to preclude her discrimination claims. Betty has a claim for unlawful discrimination based on her use of the workers’ compensation system. ORS 659A.040. In situations where it appears evident the workers’ compensation insurer was also complicit in getting the employee fired, I have been pursuing claims against the insurer, too. ORS 659A.030(1)(g). In any employment discrimination case, you are often looking to delegitimize the employer’s explanation for the decision to fire the employee. If the company’s explanation is that Betty was fired after the company “discovered” Betty’s unlawful status, then one way to show discrimination is to prove that Betty’s invocation of her rights led the company to impermissibly review her work authorization status. Generally, an employer may not review an employee’s eligibility after the employee is hired and certainly cannot review an employee’s status in a discriminatory way. If the employer admits to reviewing the employee’s eligibility as a result of the protected actions, the employer is admitting to discriminatory employment practices. Ultimately what you try to show is that the employer was aware of the employee’s work authorization status before the employee began asserting statutory employment rights. EEOC v. The Restaurant Co., 490 F.Supp. 1039, 1051 (D. Minn 2007). The best way to defeat the employer’s argument of “discovering” the employee’s authorization status is to show the employer knew or should have known the employee was unauthorized to work when hired. Often an employee will be able to state the employer knew the company’s labor force is full of unauthorized workers, either because of substandard hiring practices, improper payment schemes, using contract labor or subcontractors, or because it is an open secret in the work area. Some great sources of information about status are: • Your client’s story. Often there are clues or indicators your client can tell you about how the employer recruits, employs and treats workers. • Other workers. Will other workers confirm they are unauthorized and continue to work, having not invoked legal protections? • The I-9 and personnel records. The employer must fill out the I-9 correctly and completely, verifying that the employer checked documents to prove authorization. Often the I-9 is incomplete or incorrect, which would show the employer did not follow the proper steps to verify employment at the time of hire. • The employer’s story. How did the employer “discover” the employee’s unauthorized status? Was the discovery directly linked to the assertion of rights? In workers’ compensation cases, the insurance company may use the Social Security Network Verification System to check to see the name and social security number match. Was the insurer the source of the “discovery”? Employers will continue to employ unauthorized workers if courts limit their exposure both in liability or damages in any case the unauthorized worker might have. The rationale is clearly expressed in a Ninth Circuit opinion: “Regrettably, many employers turn a blind eye to immigration status during the hiring process; their aim is to assemble a workforce that is both cheap to employ and that minimizes their risk of being reported for violations of statutory rights. Therefore, employers have a perverse incentive to ignore immigration laws at the time of hiring but insist upon their enforcement when employees” assert their rights. Rivera et. al. v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004), cert. denied, 544 U.S. 905 (2005). That perverse incentive is minimized if courts fully and fairly enforce anti-discrimination laws, regardless of worker status. Recovering for damages Another argument that is often made against unauthorized workers is they cannot claim back wages or front wages because they are not authorized to work. In this tangential argument, the employer attempts to minimize its exposure to pay the employee damages as a reward for using an unauthorized work force. Employers rely on the U.S. Supreme Court decision Hoffman Plastic Compounds v. NLRB, 535 US 137 (2002) in their argument. In Hoffman, the court determined the National Labor Relations Board (NLRB), an administrative agency, did not have the remedial power to award back pay and reinstatement to workers who were not authorized to work. In contrast, in Rivera 364 at 1067, the Court “seriously doubt[ed] that Hoffman . . . applies in Title VII cases.” The Court justified its decision noting the administrative agency had limited authority to construe and interpret statutes, where courts do not have such narrow limitations as a co-equal branch of government. The question remains undecided. Oregon employees have the added benefit of a District Court opinion in Bustos-Contreras v. Ritter Chemical, Inc., 3:11-632-KI, [Dkt. 102 April 23, 2013] where the employer argued the plaintiff could not prove he mitigated his lost wages because to do so would have violated IRCA. The court correctly noted “plaintiff is not prohibited from working [under the IRCA] as an independent contractor for an employer who does not know he is unauthorized.” Bustos, * 3 (citing 8 USC § 1324a(a)). In Bustos, “the
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