Employer Can Pursue Fraud Claim against Undocumented Worker

Undocumented workers generally have the right to bring lawsuits under the wage-hour and discrimination laws.  While their right to reinstatement and future pay may be limited because of the immigration laws, they generally are considered to have remedies nevertheless under these laws.  At the same time, when employers are sued, they in theory have the right to bring counter-suits or counter-claims.  One employer recently brought such a counter-claim of fraud based on the Plaintiff’s presentation of fake documents to gain employment.  Oxlaj v. Darby Road Pub. House & Rest., 2018 BL 86995, D.N.J., No. 2:16-cv-01180, 3/14/18.  

The court allowed a counter-claim to be made in this situation, in which the employer is seeking a return of monies the plaintiff received while working there.  It should be noted, however, that the case is in a preliminary stage, and this result is not a final ruling.

The concept of the case is extremely interesting because there are many other circumstances in which employers are plagued with "fake" applicants.  The applicant may be a union organizer, a reporter, a safety or animal rights activist, or various other types of persons seeking to gain employment for reasons unrelated to wanting the job.  The question is whether more employers will counter-sue for fraud or related claims in these circumstances. 

A great deal of caution is necessary because the retaliation laws may come into play.  That is, it is possible for a court to rule that a counter-suit is really retaliatory based on the bringing of the complaint against the employer.  On the other hand, the counter-suing employer may argue that certain counter-claims are mandatory or the employer is waiving its legal right to sue.  Obviously, these are complicated issues.