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Serrano v. Underground Utilities Corp.

May 20, 2009


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1922-07.

The opinion of the court was delivered by: Sabatino, J.A.D.



Submitted February 2, 2009

Before Judges Carchman, Sabatino and Simonelli.

By leave granted on cross-motions, we review a protective order issued in this case, a potential class action which involves allegations that defendant employers paid inadequate wages to their workers. The protective order at issue restricts, in part, discovery of information relating to the immigration status of the named plaintiffs and of the other putative class members.

For the reasons explained in this opinion, the protective order is affirmed, with certain modifications and subject to defendants' satisfactory presentation of a more specific and compelling evidentiary proffer on remand.


The discovery dispute before us arises in the context of a putative class action filed in the Law Division by two named plaintiffs, Juan Serrano and Edilberto Vivar, on behalf of themselves and "all other persons similarly situated who were employed by defendants, Underground Utilities Corp. ("Underground"), Pipeline Equipment Co., Inc. ("Pipeline"), and other related companies, with respect to certain public and private construction projects." Plaintiffs and the other identified class members furnished labor as plumbers, steamfitters, and other construction workers for Underground and Pipeline on various government-financed public works projects. The construction projects included, among other sites, Exit 7A on the New Jersey Turnpike, several public roads in Andover and Sparta, a dam in Sparta, and a public golf course in Hamburg.

Underground*fn1 is a New Jersey corporation headquartered in Linden, and Pipeline is a New Jersey corporation headquartered in Union. According to the complaint, the president of Underground, defendant Jose Gomes, is related to the president of Pipeline, defendant Ricardo Gomes. The last named defendant, Sandra Gomes, is a relative of the two other individual defendants and is the incorporator and service agent for Underground.

The complaint alleges that Underground and Pipeline perform the same type of construction work for similar clientele. The complaint further alleges that Underground and Pipeline have shared the same employees and equipment. Moreover, the two companies are said to have conducted the same practices regarding their workers, including work hours, wages paid, and methods of payment.

On behalf of Serrano, Vivar, and the putative class members, the complaint seeks earned but unpaid overtime compensation, as well as prevailing wages and supplemental benefits. These sums are allegedly owed by defendants pursuant to the Fair Labor Standards Act, 29 U.S.C.A. §§ 207 and 216(b), (the "FLSA"), and under the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25 to -56.47 (the "PWA").

More specifically, the complaint alleges that on each work day, plaintiffs typically assembled at their respective employer's shop at about 5:30 to 6:00 a.m. At that time they were driven in employer-owned vans and trucks to defendants' various construction sites, where they would begin working at about 7:00 a.m. According to the complaint, the workers typically received only two breaks during the work day, for ten minutes at 9:00 a.m. and thirty minutes for lunch at midday. Plaintiffs allege that at some of defendants' job sites they would work until 4:00 p.m., while at other sites they did not stop working until 7:00 p.m. Plaintiffs contend that they were then routinely transported back to defendants' shop from their respective construction sites and did not typically leave the shop until between 7:30 and 8:30 p.m. The employees' work week was usually six days.

Plaintiffs contend that they customarily worked for defendants more than forty hours per week, but that all of their hours were nevertheless paid on a "straight-time" basis rather than at an overtime rate. Additionally, plaintiffs allege that they typically were paid only for their work hours at the project sites. Consequently, they were not compensated for work they performed at the shop, nor for their time spent traveling in the employers' vehicles between the shop and the project sites.

Based upon these allegations, plaintiffs contend that defendants violated Section 207 of the FLSA, which requires employers to pay overtime wages to non-exempt employees at oneand-a-half times the regular pay rate for work performed during a given week in excess of forty hours. 29 U.S.C.A § 207. Plaintiffs contend that defendants further violated the FLSA by not paying them for their time while they were working at defendants' shop and while being shuttled to and from the job sites. They allege these periods "typically amounted to between two and three hours per day" for each plaintiff.

The separate prevailing wage violations pleaded here under the PWA stem from defendants' alleged failure to compensate plaintiffs at the minimum pay rate required for workers on certain designated public works projects. According to the complaint, the putative class members typically received from defendants a regular hourly rate of pay between $9.00 and $17.00. Plaintiffs allege that those wage rates were beneath the prevailing wages mandated by N.J.S.A. 34:11-56.40.

Apart from these central statutory claims under the FLSA and the PWA, the complaint alleges that defendants are liable under theories of breach of fiduciary duty (for allegedly misusing public funds) and breach of contract. Similar common-law claims and claims under the FLSA, PWA, and other laws are asserted against the individual defendants, Ricardo Gomes, Jose Gomes, and Sandra Gomes.

By way of remedy, the complaint seeks damages for the past work that the class members performed, but for which they were insufficiently paid. Plaintiffs also demand counsel fees and the costs of suit. They do not seek injunctive or other prospective relief.

After initially moving unsuccessfully to dismiss the complaint on its face, defendants filed an answer. In their answer, defendants generally deny the complaint's operative allegations of statutory violations and common-law breaches. Defendants raise several affirmative defenses, none of them explicitly addressing the plaintiffs' residency or immigration status. Defendants also contend that the lawsuit was not properly brought as a class action, because it fails to meet the statutory requirements of numerosity, commonality, typicality of claims and adequacy of protective interests. See R. 4:32-1. A class has not yet been certified by the trial court.

The named plaintiffs, Serrano and Vivar, are immigrants from Ecuador. Apparently, many or all of the other putative class members*fn2 are originally from Central or South America. At the time of its filing, the complaint alleged that Serrano resided in Ridgewood, New York, and Vivar resided in Newark, New Jersey.

The pivotal discovery issues now before us concerning the workers' immigration status arose during the depositions of Vivar and Serrano. During both of those depositions, defense counsel made repeated inquiries of the named plaintiffs to elicit information about their respective residency and immigration status. In the course of such questioning, defense counsel showed Vivar and Serrano copies of various documents which they had each submitted to defendants in connection with their employment, including copies of their Social Security cards, employment eligibility (form I-9) verifications, and W-4 forms. Many of these questions drew objections from plaintiffs' counsel, who eventually sought the intervention of the trial court. Defense counsel asserted that he was delving into these subject matters only to explore issues of the plaintiffs' credibility, and not out of any specific intent to uncover or litigate their immigration status.

For example, defense counsel posed such questions as "Where were you born?"; "Why did you come to the United States?"; "Do you have with you picture identification?"; and "Do you have any other passports?" Defense counsel also probed into such topics as the addresses and telephone numbers of plaintiffs' relatives and the workplace of Serrano's father-in-law. At one point, defense counsel requested Serrano to take a photograph of his house and give it to his lawyer; he even offered to purchase a camera for that purpose during the lunch break. Defense counsel also asked Serrano to empty his pockets to confirm that he was not carrying additional identification.

As the result of defense counsel's inquiries into these subjects, Vivar and Serrano provided certain responses that were either internally inconsistent or were inconsistent with documents presented to them at their depositions. For example, Vivar testified that he has a Social Security number that is consistent with his 2002 and 2003 W-4 forms but is inconsistent with the two different numbers he reported on his 2000 and 2001 W-4 forms. Defense counsel also confronted Vivar with a notice from the Social Security Administration ("SSA") advising defendants that Vivar's reported Social Security number on his 2002 and 2003 W-4 forms did not match the SSA's records. Additionally, defense counsel elicited inconsistent answers from Serrano about his date of birth and his previous addresses.

Based on these inconsistencies, defense counsel asserted to the deponents that they were not telling the truth about matters concerning their residency and immigration status, accusing them multiple times of "lying." In particular, defense counsel suggested to Serrano that he was breaking the law by providing false information:

When you were sitting with the boys talking about how Underground is cheating you out of overtime even though they are paying more than double your last job, did any of the boys mention that it's against the law? Withdrawn. That you shouldn't give your employer false information about yourself[?]

Defense counsel also pointedly asked Serrano whether he was aware that he "might have to pay [the] company's attorneys fees" in the litigation.

When plaintiffs' counsel initially objected to these lines of inquiry at Vivar's deposition, the deposition temporarily halted and counsel had an impromptu telephone conference with the trial judge. As a result of that conference, counsel agreed to continue with the deposition, marking the objected-to questions for the court's future consideration in an anticipated application by plaintiffs for a protective order under Rule 4:10-3. A similar marking process took place at Serrano's deposition. Consequently, neither pre-class certification deposition of Vivar or Serrano was completed, but would be subject to the trial court's anticipated ruling.

Thereafter, the motion judge heard an application by plaintiffs' counsel for a protective order pursuant to Rule 4:10-3. In their application, plaintiffs sought to bar defense counsel from pursuing further discovery from either the named plaintiffs, or any of the other class members, concerning their immigration status, or abstract facts relating to that status. Plaintiffs also contended that the substance and manner of defense counsel's questioning was designed to intimidate the deponents from continuing to pursue the lawsuit, out of fear of possible deportation.

Defense counsel opposed the entry of a protective order. He contended that all of the information he elicited, or had attempted to elicit, was reasonably calculated to obtain relevant and admissible evidence bearing upon plaintiffs' credibility. Defense counsel denied any effort to intimidate or harass, arguing that the deponents' embarrassment or anxiety from the deposition questioning was a natural and self-inflicted consequence of their own conduct in making false statements to their employer at the time of their hire.

Endeavoring to balance the competing interests involved, the motion judge determined that a degree of protective relief was warranted, although not the complete bar upon the inquiries that plaintiffs had sought. The judge initially noted in his oral ruling that he would allow defense counsel to "ask a set of maybe two or three limited questions on this [immigration] issue in depositions." Such questions were to exclude queries about plaintiffs' present home addresses, a subject which the judge was persuaded lacked sufficient probative value in this case and one which had the capacity to raise fears of deportation. The judge also specifically prohibited defense counsel from seeking photographs of plaintiffs' houses and information about their fathers.

Consistent with his bench ruling, the judge instructed defense counsel to submit a form of order containing a list of proposed questions. The judge admonished that "if I think there's too many [questions] or if [plaintiffs' counsel] thinks there's too many[,] I'll eliminate them."

Pursuant to the court's instructions, defense counsel submitted a list of proposed questions to the court. After considering that proposed list, the court entered a protective order on July 30, 2008.

The protective order first directed each named plaintiff to appear for a continued deposition within five days after pre-certification depositions were first taken of defendants.*fn3

Additionally, the order specified that "in accordance with the [c]court's instructions, [d]efendants may ask only the following [c]court-approved questions of each named and putative class [p]laintiff at the continued pre-class certification depositions":

1. Are you a legal resident or citizen of the United States?

2. Are you currently present in the United States legally?

3. What documents, if any, did you submit to the [d]efendants at the time of your employment?

4. [After marking each document]: Is all the information reflected on this document true?

5. Is this your Resident Alien card?

6. Did you present this Resident Alien card to the [d]efendants at the ...

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