Kansas Meatpackers seek to bar immigration questions

By Roxana Hegeman Associated Press WICHITA, Kan. (AP) -- Workers who filed a class-action lawsuit against a Kansas slaughterhouse for unpaid wages and overtime have asked a federal judge to bar Creekstone Farms Premium Beef from discovering their immigration status during the litigation. The employees have asked U.S. District Judge Eric Melgren for a protective order prohibiting the Arkansas City meatpacker from receiving from the named plaintiffs -- or any other workers who opt into the lawsuit -- any information pertaining to their present names or any other names they may have used. They also seek to avoid having to disclose their place of birth, Social Security number and any present or prior addresses. The plaintiff's motion also seeks an order protecting the workers from having to turn over to Creekstone Farms any tax returns or any other tax forms filed under any of their identities or having to disclose the dates and times of entry into the United States. They also want to avoid turning over all identification documents likely to lead to the discovery of their immigration status. Their attorney, Mark Kistler, told The Associated Press Tuesday that the courts already have decided that these types of information which could lead to discovery of immigration status should be protected from discovery during a lawsuit. "Federal court after federal court has decided that that is an improper subject of discovery because allowing discovery on that issue would create an incentive for employers to hire undocumented aliens with a wink and a nod and then try to scare off class members from joining the lawsuit by seeking discovery regarding immigration status." But Alan Rupe, the attorney representing Creekstone Farms, said Tuesday that the questions they are asking the two named plaintiffs are not any different than any questions in any other collective action. "We have not asked for specific immigration status," Rupe said. "And there is a part of me, when I saw the motion for a protective order, that thought, 'You protested too much.'" Rupe contended that all Creekstone Farms is seeking at this point in the court proceedings is general background information to determine if the two named plaintiffs who filed the lawsuit can adequately represent the potential class members. Paz Sanchez and Elvis Posadas, immigrants from El Salvador, are seeking class-action certification for their April lawsuit on behalf of an estimated 700 hourly employees who worked at the facility in the past three years. Their lawsuit claims the company hasn't been paying employees for all of the time they spend working. Most of the workers who in the prospective class, assuming the lawsuit is ultimately certified as a class-action, speak Spanish. The plaintiffs' motion, filed Monday in federal court, argued it is an "utterly reprehensible" that some defendants in cases involving such demographics to attempt to strike fear into plaintiffs by seeking to find if they legally came to the United States. "In case after case, federal courts have ruled that such tactics are completely out of bounds, given that immigration status is irrelevant to damages for unpaid wages based on past-performed work," Kistler wrote in his filing. Rupe said the company intended to file a response in court arguing the firm is entitled to this kind of information because it can be used to defeat the adequacy of the class representatives. "There is nothing devious about what we are asking for, there is nothing evil about what we are asking for," Rupe said. "We are just asking these plaintiffs who have brought themselves forward and said they want to represent the entire class to prove they are representative of the entire class." If any of these plaintiffs are illegal immigrants, Creekstone Farms would not know it because they comply with the law," Rupe added. Although the questions at this stage of discovery did not specifically ask about immigration status, Rupe acknowledged that if the named plaintiffs are undocumented workers the company would then make the argument in the lawsuit that they could not be representative of the entire class of Creekstone Farms workers. "Whether they are here legally or not is irrelevant. Period," Kistler said. "And we will just let the judge decide if Mr. Rupe is correct or not as to whether it is relevent. It is not." The lawsuit claims Creekstone Farms has a practice of paying hourly meat processing employees based on a principle of so-called gang time. It contends workers are typically paid only for the time that their assigned production lines are running, along with 10 minutes a day to put on their protective clothing. The suit also contends the company failed to pay for overtime. "We complied with the law and paid them for all time worked and we paid them overtime when they were entitled to it," Rupe said. Published: Fri, Jul 29, 2011