Summary of a Recent
Judicial Development in
Labor

Migrant Workers' Privacy Interests Protected

Brandy L. Brown
National AgLaw Center Graduate Assistant

In an action brought by several migrant workers against their employers seeking damages and injunctive relief under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-1872, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68, and various provisions of New York law, the United States District Court for the Western District of New York has ruled that the workers' fear of retaliation by the employers was sufficiently well-founded to allow the workers to proceed anonymously. Javier H. v. Maria Garcia-Botello, 211 F.R.D. 194,195-96 (W.D. N.Y. 2002).

Ten migrant farm workers, plaintiffs, filed a complaint against Maria Garcia-Botello and Elias Botello, defendants, on July 22, 2002. See id. at 195. The workers filed a motion on the same day requesting that they be allowed to proceed anonymously. See id. The workers claimed that they feared retaliation from the defendants if their identities became known. See id.

The defendants argued that the workers' complaint was defective because it failed to comply with Federal Rule of Civil Procedure 10(a). See id. Federal Rule of Civil Procedure 10 (a) states, in relevant part, that "'in the complaint the title of the action shall include the names of all the parties.'" Id. (citation omitted). The district court explained that courts have recognized that, due to individual privacy concerns, there are exceptional situations in which the identities of certain plaintiffs may be concealed from the public record. See id. The court also explained that courts have the discretion to determine whether a plaintiff may proceed anonymously in an action. See id. (citing Doe v. Shakur, 164 F.R.D. 359, 360 (S.D. N.Y. 1996)).

The court stated that "'the ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." Id. (quoting Shakur, 164 F.R.D. at 361). The test consists of several factors including, but not limited to

(1) whether the plaintiff is challenging governmental activity; (2) whether the plaintiff would be required to disclose information of the utmost intimacy; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering injury if identified; and (5) whether the party defending against the suit brought under a pseudonym would be prejudiced.

Id. (citing Shakur, 164 F.R.D. at 361).

p The migrant workers focused their argument on the fourth and fifth factors, asserting that there was a risk of injury if they were identified and that the employers would not be prejudiced if their identities were concealed. See id. at 196. The workers alleged that the defendants had threatened them with violence on prior occasions. See id. They also submitted a "criminal indictment handed down by the grand jury charging defendants with serious crimes arising out of the same facts supporting this action." Id. The workers also argued that if their identities were revealed, the government's criminal case pending against the defendants could be harmed because the defendants could attempt to prevent them from aiding the government's prosecution. See id.

The defendants contended that the court had to consider the fact that the migrant workers had voluntarily brought the civil action. See id. at 195. They also argued that "fairness usually requires that a plaintiff stand behind its charges publicly." Id. (citing Shakur, 164 F.R.D. at 361). The defendants alleged that the workers' mere public allegations have harmed their reputation and resulted in a disadvantage to them. See id. Finally, the defendants contended that the public has a legitimate interest in the facts of all lawsuits, including the identities of all parties involved. See id. at 196.

The court ruled in favor of the workers but reserved the right to reconsider the issue at a later time. See id. It ruled that the workers could proceed anonymously because their privacy interest substantially outweighed the customary and constitutionally-embedded presumption of openness in judicial proceedings. See id. The court stated that the defendants had a history of violence and had allegedly threatened harm to the workers on a previous occasion. See id. The court also stated that the "Defendants have been criminally charged with similar acts of harassment, intimidation, and threats of violence that plaintiffs continue to fear." Id. The court stated that if both allegations were proved to be true, then the workers' fear of retaliation would be enough to allow them to proceed anonymously. See id.

The case was decided on November 7, 2002; this summary was posted February, 2003