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Court of Appeals Will Hear Case of Discovery Abuse Against Lawful Immigrant Domestic Worker

Campbell v. Bolourian, No. 869 Court of Appeals of MD, Sept. 2005 Term
On January 13, 2006, the Court of Appeals, by its own motion, granted certiorari in this case concerning the rights of immigrant workers to sue for unpaid wages. The Public Justice Center, the ACLU of Maryland, the D.C. Employment Justice Center, the National Council of La Raza, the National Employment Law Project, the National Immigration Law Center, and Brown, Goldstein and Levy, LLP filed an amicus brief alerting the court that in this case of first impression, a ruling permitting employers to abuse discovery to intimidate documented and undocumented immigrant workers would undermine the ability of immigrant workers in Maryland to enforce their right to be paid for work performed, and indeed to enforce their workplace rights more generally.  Cynthia Campbell sued the Bolourians for back due wages after leaving her job as an immigrant worker legally authorized to work as a live-in domestic employee in their home.  The Bolourians responded by demanding discovery concerning her immigration status after she left their employ, her present employers, and income tax filing information for the time period after she left their employ. Campbell’s attorneys, Casa of Maryland, sought a protective order, which Judge Durke Thompson of Montgomery County Circuit Court denied.  Casa then brought this interlocutory appeal.  
Amici argued that the consensus of courts nationwide, as well as the legislative history of the Fair Labor Standards Act, the Maryland Wage Payment and Collection Act and the Maryland Wage and Hour Law, concur that federal and state wage and hour laws cover all workers regardless of immigration status.   These laws were intended to stabilize the economy and ensure a “fair days work for a fair days pay” (to quote President Roosevelt) for all workers, by protecting the most vulnerable sectors of workers from exploitation. Thus, Campbell’s immigration status, present employers and tax filing information are irrelevant to her claim to be paid for hours she already worked. In addition, even if immigration status were arguably relevant, discovery should still be barred because it would chill the enforcement of laws concerning wages and hours, workplace safety, labor and civil rights by effectively barring access to courts to immigrant workers.   Legally authorized immigrant workers, particularly in the aftermath of the tragic events occurring on September 11, 2001, reasonably fear that disclosure of sensitive immigration information will bring embarrassment, discovery of a previously unknown defect in status, government mistake, or negative consequences for family members, some of whom might be undocumented.  Undocumented immigrant workers reasonably fear criminal prosecution and deportation.  In the face of such intrusive discovery, these reasonable fears will dissuade immigrant workers, both documented and undocumented, from pursuing their lawful rights. Without access to redress for unpaid wages, immigrant workers would be vulnerable to exploitation by unscrupulous employers.  As a result, a subclass of immigrant workers, fearful of scrutiny of their immigrant status, would decline to bring claims to enforce workplace rights and would subsist completely outside legal protections.
Suzanne Sangree, Director of Appellate Advocacy and Murnaghan Appellate Advocacy Fellow Roscoe Jones, Jr. served as counsel for amici.

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