FLSA Plaintiff Detained by ICE During Deposition

In a particularly disturbing development, it is reported that a plaintiff in a wage-and-hour FLSA lawsuit – plaintiff Xue Hui Zhang, suing his former employer, Albany restaurant Ichiban, for $200,000 in back wages – was detained by Immigration & Customs Enforcement (ICE) agents during a deposition.

As indicated in the above-linked news article (dated August 16, 2019):

Last Monday, attorney Adam Dong said he was accompanying Zhang as he gave his deposition at the office of the defense counsel near Albany. The arrest happened when they broke for lunch. “We got out of the car and we walked toward the diner entrance,” Dong recalled. There, he said, five or six ICE agents “stopped us and said, ‘Mr. Zhang can you come with us?'” He said he asked the ICE agents why Mr. Zhang was stopped and was told they had an outstanding warrant. He’s now being held at a detention center in Buffalo.

A Memorandum of Understanding between DOL and DHS provides, inter alia, that with certain exceptions, “ICE agrees to refrain from engaging in civil worksite enforcement activities at a worksite that is the subject of an existing DOL investigation of a labor dispute during the pendency of the DOL investigation and any related proceeding.” (It is not clear whether the deposition location here qualifies as a “worksite” within the meaning of the MOU.)

The article notes that Mr. Zhang believes his former employer notified ICE about where he was, but the employer’s attorney denies alerting ICE.

Federal law prohibits, in addition to failing to pay workers properly, “retaliation” for engaging in certain activities. Specifically, the FLSA states:

[I]t shall be unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding … [29 U.S.C. § 215(a)(3) (emphasis added).]

It remains to be seen whether and to what extent this provision might apply to these facts.

That said, it is undeniable that permitting such conduct to occur without consequence is likely to impose substantial chilling effects on the willingness of undocumented persons – who do indeed have legal protections – to come forward and assert their rights.