Employment case highlights problem with hiring illegals

Unique employment-related litigation that has been filed in Texas state courts could be more than an unusual problem for one employer. Indeed, the litigation, which spotlights the issue of employing illegal immigrants, ultimately could unite risk managers and organizations with wide-ranging political leanings.

The litigation against Dublin, Ohio-based Wendy's International Inc. and subsidiary Cafe Express L.L.C. of Houston was filed by a group of illegal immigrants, who claim the defendants ruined the plaintiffs' opportunity to attain legal U.S. residency and citizenship.

That opportunity arose in 2001 when Congress created a program in which illegal immigrants could attain permanent U.S. residency if they had jobs that no U.S. citizen wanted, admitted that they entered the country illegally and paid a fine. But if illegal workers did not apply for that so-called forgiveness by April 30, 2001, they were required to leave the country and not seek residency for 10 years, said plaintiffs' attorney Stanley Broome, who represents the immigrants suing Wendy's.

According to court papers, Wendy's created a corporate program to facilitate its illegal workers' filings, which were to be processed by Houston-based law firm Boyar & Miller P.C. But Boyar, also a named defendant, missed the filing deadline, according to court papers.

Still, Wendy's and Cafe Express assured the workers for years that their applications had been filed and were being processed, the plaintiffs charge.

During that period, the workers also paid $100 each month through payroll deductions to cover related legal expenses and abided by written warnings from Wendy's that they could not seek other employment without nullifying their forgiveness applications, noted Mr. Broome, a partner at Howie, Broome & Bobo L.L.P. of Irving, Texas.

Some of the plaintiffs were terminated this summer when Wendy's told them it learned of the filing problem and no longer could knowingly employ illegal immigrants. Others have quit their jobs, Mr. Broome said.

The attorney has filed six individual lawsuits and a proposed class action lawsuit in state courts in Dallas and Houston.

In the proposed class action, which he estimated will ultimately double to 100 plaintiffs, Mr. Broome said he will ask for hundreds of millions of dollars for the plaintiffs--"the price of their last chance to become a U.S. citizen."

Attorneys say that other employers might have had similar programs, but there is no way to determine whether they missed the filing deadline until immigration officials finish sorting through all applications.

But Mr. Broome said he has heard "this is a significant problem."

Even employers that did not have such programs but knew they employed illegal immigrants might face legal problems, said employer attorney Dyann DelVecchio, a partner at Seyfarth Shaw L.L.P in Boston. The law is unclear about whether such employers were obliged to assist illegal workers in filing their applications, she said.

And don't count on courts tossing out such litigation because the plaintiffs are in the country illegally, attorneys say. There is no legal barrier to such litigation, attorneys agree.

But a lawsuit does not shield the plaintiffs from U.S. immigration laws, Ms. DelVecchio said. She questioned how many potential plaintiffs would risk exposing their illegal status by filing lawsuits.

That risk, however, did not deter Mr. Broome's clients. And any success they have surely would embolden other illegal immigrants--something that Mr. Broome said he hopes will happen.

There is only one salvation for employers, Mr. Broome said: legal residency with the opportunity for U.S. citizenship for the plaintiffs. That could be achieved by Congress either waiving the application deadline for his clients or enacting a guest worker, forgiveness or amnesty program for illegal immigrants.

If that happens, at least the Wendy's plaintiffs would give up the American birthright to litigation and a windfall award in exchange for citizenship, Mr. Broome said. "We'll all go away, and you won't have to worry about giving these people money."

If future plaintiffs adopt the same attitude, that would be great news--at least liability-wise--for risk managers and organizations of all political stripes.