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Federal Judge Rules Deposition Should Not Have Proceeded Without Plaintiff’s Lawyer Present in FLSA Lawsuit


Among all the hype surrounding immigration law it is handy to know that the federal Fair Labor Standards Act (FLSA) in its definition of “employee” does not differentiate between legal citizens and aliens. Illegal immigrants to America, therefore, are subject to all of the same protections provided by the FLSA as their natural-born neighbors. This includes the right to at least minimum wage and the proper overtime compensation.

In a recent class action lawsuit for unpaid wages filed in Illinois, the defendants in the case were prohibited from discovering the immigration status of one of the plaintiffs. Oswaldo Nieves and Jesus Alcantar filed the lawsuit against OPA Inc. and Chris Georges for violating the FLSA and Illinois Minimum Wage Law when they allegedly failed to pay their employees the proper overtime compensation.

The defendants in the case scheduled Nieves’s deposition, but Nieves’s attorney objected. To try to get around that objection, Chris Georges, Nieves’s boss, called Nieves to meet him in Chicago to help him move merchandise to a new restaurant Georges was opening. When Nieves got there, instead of meeting Chris, he was met by John Georges, Chris’s brother. John Georges allegedly informed Nieves “you’re coming with me.” John then allegedly brought Nieves to the defense attorney’s offices where the defense attorney proceeded to depose Nieves in the absence of Nieves’s counsel.

The alleged improper deposition went on for about a quarter of an hour before Nieves called for a break. After the break, the defense attorney allegedly claimed that he “had been previously advised that [Nieves] did not have a lawyer in this case”. According to the defense attorney, Nieves’s attorney had just called the attorney’s office to let him know that he did not want the deposition to go forward at that time.

Nieves and Alcantar have since filed a motion to disqualify the defense attorney based on Rule 4.2 of the Illinois Rules of Professional Conduct. They also requested that the U.S. District Judge, Virginia Kendall, grant a protective order to block the defendants from pursuing discovery about Nieves’s immigration status.

The defense attorney responded by saying that he reasonably believed that Nieves was unrepresented. He even went so far as to claim that finding out whether Nieves had representation was one of the purposes for the deposition.

Far from accepting this excuse, Kendall noted that it was “indisputable” that Nieves’s counsel had appeared in court on Nieves’s behalf and that the defense attorney must have been aware of that. It is also “indisputable that the defendant’s counsel discussed scheduling the deposition of Nieves with his counsel.” Furthermore, Kendall wrote that, “even if defendants’ counsel’s doubts were reasonable [and the court does not believe that they are], defendants’ counsel should have brought his concerns to the attention of the court, not to engage in self-help by seeking to depose the plaintiff without the presence of counsel.” Kendall therefore concluded that the defendants’ attorney had, indeed, violated Rule 4.2 of the Illinois Code of Professional Conduct.

Regarding the issue of discovery into Nieves’s immigration status, Kendall pointed out that “other courts in the district and elsewhere have found that the immigration status of a party is not a line of inquiry that is reasonably calculated to lead to the discovery of admissible evidence in action brought for unpaid wages under the FLSA because undocumented workers are not exempted from the definition of ’employee’ in the FLSA.” Judge Kendall therefore banned the defense attorneys from conduction discovery into Nieves’s immigration status, as it is irrelevant to the case at hand.

The Chicago class action lawyers at the Chicago Overtime Law Center are investigating unpaid overtime claims by waiters and bus boys and other restaurant and hotel workers against national restaurant chains including Chipotle, Red Lobster, Olive Garden, Outback Steak House, Taco Bell, Burger King, Wendy’s and hotels for misclassifying employees as managers or assistant managers, forcing employees to work off the clock at business, failing to share all tips, erasing or altering time sheets or time records, pressuring workers not to report or record overtime, and otherwise failing to pay workers for overtime and other wages. If you are the victim these wage theft practices call us at (312) 869-4095 or contact us online.

The Chicago class action attorneys at the Chicago Overtime Law Center have three decades of experience fighting to help employees who are victims of wage, overtime and tip theft by their employers. We have a team of Chicago unpaid overtime lawyers who concentrate on prosecuting state and nationwide class action lawsuits. Our attorneys work out of Chicago and Oak Brook offices and pursue claims for workers all over the Chicago area including Northbrook and Arlington Hts. We protect unpaid workers who haven’t received overtime throughout the Chicago area including in DuPage, Lake, McHenry, Kane and Cook Counties.

Our Naperville and Rockford overtime lawyers are intimately familiar with the issues that arise during wage claim litigation, and we know the laws that govern overtime cases well. Many employers misclassify employees as being exempt from overtime laws and pay workers salaries instead of hourly wages in order to avoid paying them overtime. Some employers mistakenly classify employees as exempt and others intentionally do so in order to circumvent the law. In either case, workers do not receive the wages they should, and a lawsuit may be the only way to recover their earned wages.

The Chicago Overtime Law Center is based in Chicago, and represents clients throughout the country who have not been paid for the overtime hours that they worked. If you believe that you are owed overtime wages, contact one of our Chicago class action attorneys by phone at (312) 869-4095 or through our online form.