SDNY issues TRO in FLSA case to prevent retaliation based on immigration status

A Southern District judge has issued a temporary restraining order that prohibits an employer in an FLSA case from "instructing all staff of All City Remodeling, Inc. to "provide an original social security card before collecting [their] weekly check." Plaintiff says this directive constitutes unlawful retaliation and that "this request for social security cards, made shortly after Plaintiffs raised concerns about other retaliatory conduct and shortly before the start of depositions, constitutes an implied threat or intimidation against Plaintiffs' exercise of their rights under the FLSA." Judge Torres grants the TRO,

The case is Alaguachi v. All City Remodeling, 15 Civ. 9688 (AT) (RLE). The TRO was issued on April 20. Judge Torres notes that "the reporting of an employee's immigration status -- as implicitly threatened by Defendants' conduct constitutes an adverse employment action." Also bear in mind that a plaintiff's immigration status is irrelevant in determining whether the plaintiff has a case under the Act. If you do the work, you get paid no matter what. The order is below.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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VICTOR P ALAGUACHI, DANIEL GALDAME,
and MARCO MOROCHO, on behalf ofthemselves
and other employees similarly situated,

Plaintiffs,

-against-

ALL CITY REMODELING, INC., T &G
CONTRACTING INC., GEORGE TSIMOYIANIS,
and JOHN DOES 1-100, the actual names ofsuch
individuals or entities being unknown,

Defendants.
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TEMPORARY RESTRAINING ORDER

ANALISA TORRES, District Judge:

On April 20, 2017, Plaintiffs filed an emergency motion seeking a temporary restraining order or preliminary injunction against allegedly retaliatory actions by Defendants in this wage and hour action. Letter Mot., ECF No. 128. In particular, Plaintiffs provided an April 18 memorandum sent by Defendant George Tsimoyianis instructing all staff of All City Remodeling, Inc. to "provide an original social security card before collecting [their] weekly check on Friday, April 21, 2017." Id Ex. A. Plaintiffs contend that Defendant's conduct constitutes retaliation in violation of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 215(a)(3), as well as an unfair immigration-related employment practice in violation of 8 U.S.C. § 1324b(a)(6).

The standard for entry of a temporary restraining order ("TRO") "is the same as for a preliminary injunction." Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). In particular, "a party must demonstrate '(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the  merits to make them a fair grounds for litigation and a balance of hardships tipping decidedly in the movant's favor."' Id (quoting MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 192 (2d Cir. 2004)).

First, as to irreparable harm, ''[t]he Second Circuit has recognized that, depending on the facts and circumstances of a particular case, retaliation and the resulting weakened enforcement of federal law can itself be irreparable harm." Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 135 (W.D.N.Y. 2003) (citing Holt v. Cont'! Grp., 708 F.2d 87, 91 (2d Cir. 1983)). Likewise, "[i]t is well established that the anti-retaliation provision of the FLSA is critical to the entire enforcement scheme of the federal wage and hour law." Id. (citing Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960)).

Plaintiffs have sufficiently demonstrated that this request for social security cards, made shortly after Plaintiffs raised concerns about other retaliatory conduct and shortly before the start of depositions, constitutes an implied threat or intimidation against Plaintiffs' exercise of their rights under the FLSA. Without a temporary restraining order, such conduct would cause Plaintiffs irreparable harm. See id.

Second, Plaintiffs have demonstrated a likelihood of success on the merits. To state a prima facie claim for FLSA retaliation, "a plaintiff must show ' (1) participation in protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action."' Id at 136 (quoting Lai v. Eastpoint Int 'l, Inc., No. 99 Civ. 2095, 2000 WL 1234595, at *3 (S.D.N.Y. Aug. 31, 2000)). The present litigation constitutes protected activity on the part of Plaintiffs, and the reporting of an employee's immigration status -- as implicitly threatened by Defendants' conduct constitutes an adverse employment action. See id.; EEOC v. Rest. Co., 490 F. Supp. 2d 1039, 1046, 1050-5 I (D. Minn. 2007); Contreras v. Corinthian Vigor Ins. Brokerage, 103 F. Supp. 2d 1180, 1185 (N.D. Cal. 2000). Finally, as discussed above, the timing of Defendants' conduct in relationship to other events in this litigation is sufficient to infer a causal connection. See Centeno-Beruny, 302 F. Supp. 2d at 136; EEOC, 490 F. Supp. 2d at 1050-51 ("One week after Torres complained to upper management about Centeno's behavior, she was terminated, or at least told that she could not return without proper documentation.").

Having met the standard for a temporary restraining order, Plaintiffs' motion is GRANTED to the extent that:

1. Defendants are prohibited from taking any adverse employment actions or retaliating in any way against Plaintiffs and putative class and collective action members on the basis of their participation in this litigation.

2. Defendants are temporarily restrained from soliciting from Plaintiffs and putative class and collective action members any information regarding immigration status, including requiring the presentation of social-security cards.

3. The parties shall confer at their earliest convenience and contact chambers at (212) 8050292
to schedule a prompt hearing on Plaintiffs' request for a preliminary injunction.

This Order is effective from April 20, 2017, at 7:00 p.m. through May 1, 2017, at 5:00 p.m.
or as further ordered by the Court.

SO ORDERED.

Dated: April 20, 2017
New York, New York

ANALISA TORRES
United States District Judge