Question: The employee, an immigrant, filed a claim with state's labor commission, claiming unpaid overtime entitlements. The employer then reported her immigration status to the Immigration and Naturalization Service (now the Bureau of Citizenship and Immigration Services in the Department of Homeland Security), which upon investigation found that the employee in fact was in violation of INS regulations. Should the employee be permitted to pursue a lawsuit against the employer, alleging retaliation in violation of Section 215(a)(3) of the FLSA, which makes it illegal to punish an employee for exercising her rights under the FLSA?
Does your answer change if the Immigration Control and Enforcement (ICE) agency fails to find that the employee is working in violation of ICE regulations? What if the reporting employer honestly believed in good faith that the violation existed? What are the competing public policy considerations for and against permitting such a lawsuit under these two different sets of facts? See Contreras v. Corinthian Vigor Insurance Brokerage, Inc. [2000 WL 1521369 (N.D. Cal.)].