05-20-09 JUAN SERRANO and EDILBERTO VIVAR, et al v. UNDERGROUND
UTILITIES CORP., et als.
A-0676-08T1
Plaintiffs, laborers employed by defendants on various
construction projects in New Jersey, filed this putative class
action on behalf of themselves and others similarly situated
employees, alleging violations of the Fair Labor Standards Act,
29 U.S.C. §§ 207 and 216(b), and the New Jersey Prevailing Wage
Act, N.J.S.A. 34:11-56.25 to -56.47.
Plaintiffs contend that they were not paid for all of the
time that they actually worked, were paid regular wages for
overtime hours, and were paid at hourly rates below the
mandatory prevailing wage levels for public works projects.
They seek compensation allegedly due under the statutes for work
already performed, but no prospective relief.
The two named plaintiffs are immigrants from Ecuador, and
most or all of the other alleged class members are from Central
or South America. During initial depositions, defense counsel
attempted to probe into plaintiffs' immigration status and other
related matters, contending that such inquiries are germane to
plaintiffs' credibility. Plaintiffs contend that the inquiries
are improper and designed to intimidate them and the potential
class members.
On leave granted, we affirm, with certain modifications and
conditions, the trial court's protective order restricting the
discovery of information relating to plaintiffs' immigration and
residency status.
Judge Carchman has filed a concurring opinion, stating that
the proper methodology for balancing the appropriate factors is
to start with a presumption that any inquiry into matters of
immigrant status is not appropriate. The concurrence would
place the burden on the proponent to demonstrate, beyond the
issue of credibility, why such inquiry is germane to the issues
in dispute. Judge Simonelli joins in the concurring opinion.
Richard Sadowski
Assistant Editor
