Petition for Writ of Certiorari — Marmic, LLC, et al., Petitioners v. Sergio Lopez

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, Supreme Court of New Jersey

(March 19, 2026) ................................................. 1a

Opinion, Superior Court of New Jersey

(June 20, 2024) ................................................. 30a

Order, Superior Court of New Jersey

(March 7, 2023) ................................................. 55a

Transcript of Decision, Superior Court of

New Jersey (March 3, 2023) ............................ 57a

STATUTORY PROVISIONS

Relevant Statutory Provisions ............................... 78a

8 U.S.C. § 1324a ............................................... 78a

8 U.S.C. § 1324c .............................................. 100a

App.1a

OPINION,

SUPREME COURT OF NEW JERSEY

(MARCH 19, 2026)

SUPREME COURT OF NEW JERSEY

________________________

SERGIO LOPEZ,

Plaintiff-Appellant,

v.

MARMIC LLC, and MIKE RUANE, individually,

Defendants-Respondents.

________________________

No. 089632

A-27 September Term 2024

On certification to the Superior Court,

Appellate Division

Before: RABNER, Chief Justice, PATTERSON,

PIERRE-LOUIS, WAINER APTER, FASCIALE,

NORIEGA, and HOFFMAN, Justices.

CHIEF JUSTICE RABNER delivered the opinion of

the Court.

This appeal involves the interplay between two

sets of legal requirements. Federal law bars employers

from hiring and continuing to employ undocumented

individuals who are not lawfully admitted or authorized

to work in the United States. 8 U.S.C. § 1324a(a)(1)(A),

(a)(2). And State wage and hour laws require employers

App.2a

to pay minimum wages and overtime to employees.

N.J.S.A. 34:11-56a4(a), (b)(1).

Like the many other courts that have considered

the question, we find the different sets of laws do not

conflict in this regard: if an employer hires an

undocumented worker in violation of federal law, the

employer is required to compensate the person in a

manner consistent with state law for work they

actually perform. Otherwise, certain employers would

be incentivized to hire undocumented workers—which

is precisely the opposite of what federal law seeks to

accomplish—and pay them less than the law requires.

In this case, it is undisputed that an undocumented

individual worked for a realty management company

as a superintendent. The company paid him by way of

a barter arrangement—a rent-free apartment in

exchange for his labor—instead of paying hourly

wages and overtime. As a general rule, that type of

barter arrangement does not satisfy New Jersey’s

wage and hour laws, aside from limited exceptions.

After several years, the employee brought a claim

for wages and overtime against his employer for hours

he had already worked. The trial court dismissed the

claim. Among other things, the court found the

employee was not credible because of his use of an

invalid Social Security number (SSN) when he first

applied for the job. The court also faulted the

employee for failing to produce sufficient evidence of

the number of hours he had worked.

The Appellate Division affirmed the judgment of

the trial court. We reverse. For his services as a superintendent, the undocumented worker was considered

an employee under the broad scope of state law.

App.3a

N.J.S.A. 34:11-4.1(b), -56a1(f), (h). He was therefore

entitled to appropriate wages for work he had already

performed. Neither his immigration status nor the

barter arrangement with his employer provided

grounds to deny his wage claim for work already

performed.

In addition, employers, not employees, have an

obligation under state law to keep records of hours

worked and wages paid to their employees. N.J.S.A.

34:11-4.6(e), -56a20. When employers fail to do so, a

rebuttable presumption applies against them in wage

claim cases. N.J.S.A. 34:11-58(d).

We also conclude it was error to consider evidence

of the employee’s use of an invalid SSN in the manner

the trial court did. Because the use of an invalid SSN

can serve as a proxy for a person’s immigration status,

we offer guidance about how to assess the admissibility

of such evidence in wage and hour cases going forward.

We remand the matter to the Law Division to

determine the appropriate amount of damages due.

I.

A.

We draw the following facts from the parties’ testimony at a bench trial.

Defendant Mike Ruane owned defendant Marmic

LLC, a residential and commercial realty management

company. In June 2015, Ruane hired plaintiff Sergio

Lopez to work as the superintendent of two buildings

Marmic owned in Newark. The buildings had commercial and residential units.

App.4a

When Lopez applied for the job, he provided an

invalid SSN on a W-4 form. Employees are required to

“furnish [their] employer with a signed” W-4 form on

or before the date they begin employment. 26 C.F.R.

§ 31.3402(f)(2)-1(a)(1). “Every individual to whom a

social security number has been assigned must

include [the] number on” the W-4 form. Id. at-1(f)(2).

A person’s SSN establishes their legal authorization

to work in the United States. See 8 C.F.R.

§ 274a.2(b)(1)(v)(C)(1).

Ruane testified that he initially offered Lopez

$1,600 per month in salary—or $400 per week—as well

as an apartment. Lopez was to “reimburse” Ruane $800

per month for the value of the basement apartment.

Lopez was paid $400 per week for the first two

weeks. Ruane testified that after he discovered the

SSN was invalid, he told Lopez he could not pay him

because that would be “against the law.” Instead,

Ruane offered to let Lopez live in the apartment rentfree, without having to pay the cost of utilities, for

“perform[ing] the duties . . . we asked him to do, in

return.”

Lopez continued to work and live in the apartment.

He testified that when he complained about not being

paid wages, Ruane responded that Lopez “needed to fix

[his] documents so that” he could be paid. The parties

did not enter into a written employment or lease

agreement.

Lopez testified he worked as a superintendent

from June 15, 2015 until December 2018 and performed

various maintenance tasks. He testified that he cleaned

common areas, picked up garbage, removed snow and

leaves, swept and mopped floors inside the building,

App.5a

painted apartments when tenants moved out, fixed

leaks and broken pipes, helped tenants when repairs

were needed, and cleaned dryers and unclogged

washing machines for commercial tenants, among

other things. Lopez testified that he performed those

tasks alone.

Ruane heard Lopez testify. When questioned

afterward, Ruane agreed that Lopez performed the

tasks he had testified about.

Lopez also testified that the hours he worked

alternated between “long” and “short” weeks. For long

weeks, he worked about 60 hours; for short weeks, he

averaged 37 hours. Ruane testified he did not require

Lopez to work a specific number of hours per week and

never directed him to work more than 60 hours in a

week. Ruane did not keep track of the number of hours

Lopez worked, and neither party presented any

written records at trial about his hours. Marmic

maintained no records relating to Lopez’s employment.

B.

Lopez filed a claim for unpaid wages with the

Department of Labor in 2018. The Department

reviewed the claim and leveled a $750 penalty for the

following violations: “Records-No Records Provided”

and “Unpaid Wages/Late Payment.” Ruane contested

the penalty, and the matter was settled in November

2018 for $250. The Department noted that Lopez

could request a wage hearing for the balance of his

claim. Marmic fired Lopez in December 2018.

Lopez filed a three-count complaint against

Marmic and Ruane in September 2019. The complaint

alleged (1) violations of the overtime and minimum

wage provisions, contrary to N.J.S.A. 34:11-56a4, and

App.6a

(2) failure to pay full wages on a timely basis, contrary

to N.J.S.A. 34:11-4.2.

The trial court conducted a bench trial on August

18, 2022. Lopez and Ruane both testified, and part of

their testimony is summarized above. During the

hearing, the court allowed testimony about Lopez’s

use of an invalid SSN but did not permit crossexamination about his immigration status.

The trial court dismissed Lopez’s claims with

prejudice in an oral ruling in March 2023. In recounting

the facts, the court acknowledged the nature of the

parties’ barter agreement. It went on to identify

several bases for concluding that Lopez had not “met

[his] burden of proof.” First, the court did not find

Lopez “credible or believable.” The court explained

that he “admitted . . . he lied” when he listed an SSN

on the W-4 form that “[h]e knew at the time . . . wasn’t

valid.” The court also found that Lopez “waffled” when

he was asked questions about the form on crossexamination.

Second, the court determined that, although

Lopez “ultimately [had] the burden of proof” to show

he was entitled to recovery, he did not “articulate[]”

with “any specificity” the “total number of hours

worked.” Nor did he attempt to “reconstruct[]” the

hours he worked from messages from tenants “he

might have had in his phone.” The number of hours

worked, the court stated, was “a matter of complete

speculation.”

The court also observed that Lopez “knew full

well he wasn’t qualified to earn those—be paid those

wages legally because he . . . was an undocumented

alien.”

App.7a

The Appellate Division affirmed the trial court’s

judgment. The appellate court agreed that because

Lopez “is an undocumented alien” and “was not

eligible to work” under federal law, “there could be no

employee-employer relationship between the parties.”

As a result, the court found that Lopez “was barred

from relief and was precluded from recovering

damages.” In that context, the court referenced “the

trial judge’s determination that [Lopez] ‘lied’ when he

completed and signed the W-4 form.”

The Appellate Division noted that, under Serrano

v. Underground Utilities Corp., 407 N.J. Super. 253,

269-70 (App. Div. 2009), an undocumented worker is

permitted to recover damages for work already

performed. The appellate court nonetheless concluded

that Lopez failed to satisfy his burden of proof to

recover damages because he “failed to proffer any time

sheets or other documents supporting the hours he

worked.” The court declined to apply the burdenshifting approach set forth in Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680 (1946), which it explained

“only applies where damages are certain.”

The Appellate Division also found that testimony

about Lopez’s use of an invalid SSN was relevant

under N.J.R.E. 401, and that the trial court did not

abuse its discretion under N.J.R.E. 607 in admitting

the evidence for impeachment purposes.

Finally, the Appellate Division agreed with the

trial court that “a barter arrangement was created

after defendants discovered” that Lopez had provided

an invalid SSN. The appellate court did not accept

Lopez’s “attempt[] to argue that an employer-employee

relationship continued to exist” afterward.

App.8a

C.

We granted Lopez’s petition for certification. 260

N.J. 4 (2025). We also granted the following entities

leave to appear as friends of the court: the New Jersey

Department of Labor and Workforce Development;

Make the Road New Jersey, Legal Aid at Work,

National Employment Law Project, American Civil

Liberties Union of New Jersey, Comité de Apoyo a los

Trabajadores Agrícolas, Laborers Eastern Region

Organizing Fund, Laundry Workers Center, Legal

Services of New Jersey, New Jersey Alliance for Immigrant Justice, New Labor, Service Employees

International Union Local 32BJ, and Volunteer

Lawyers for Justice (collectively, Make the Road); the

New Jersey Association for Justice; Seton Hall

University School of Law Center for Social Justice

(Seton Hall); and Law and Labor Professors

(Professors).

II.

A.

Several statutes lie at the heart of this appeal.

We summarize certain parts of the laws here to

provide a backdrop for what follows. We review

questions of statutory interpretation de novo. Krug v.

State Parole Bd., 261 N.J. 477, 485-86 (2025).

New Jersey’s Wage and Hour Law (WHL),

N.J.S.A. 34:11-56a to-56a43, “protect[s] employees

from unfair wages and excessive hours.” Hargrove v.

Sleepy’s, LLC, 220 N.J. 289, 304 (2015) (quotation

omitted). The law also protects employees and

employers alike from “unfair competition resulting

from wage levels detrimental to [one’s] . . . well-being.”

App.9a

N.J.S.A. 34:11-56a. The statute requires employers to

pay the minimum wage established by law. N.J.S.A.

34:11-56a4(a). It also directs employers to pay overtime

“for each hour of working time in excess of 40 hours in

any week.” Id. at (b)(1).

New Jersey’s Wage Payment Law (WPL), N.J.S.A.

34:11-4.1 to-4.15, “governs the time and mode of

payment of wages due to employees.” Musker v.

Suuchi, Inc., 260 N.J. 178, 186 (2025) (quoting Maia

v. IEW Constr. Grp., 257 N.J. 330, 344 (2024)). Under

the statute, employers must “pay the full amount of

wages due” an employee “at least twice” each “month,

on regular paydays” fixed in advance. N.J.S.A. 34:114.2.

Both statutes are remedial and should be liberally

construed. See Hargrove, 220 N.J. at 303-04. Both also

extend broadly to anyone “suffered or permitted to

work by an employer.” N.J.S.A. 34:11-4.1(b) (WPL),56a1(f) (WHL) (using parallel language). Neither law

excludes undocumented workers from its reach. The

Department of Labor represents that it “consistently

enforces the WHL and WPL without regard to

immigration status.”

We also draw on case law that interprets the

federal Fair Labor Standards Act (FLSA), 29 U.S.C.

§§ 201 to 219. All three statutes-the FLSA, WHL, and

WPL—“address . . . fundamental

terms

of

the

employment relationship.” Hargrove, 220 N.J. at 313;

see also Garcia v. Freedom Mortg. Corp., 790 F. Supp.

2d 283, 288 n.7 (D.N.J. 2011) (“The NJWHL is

patterned after the FLSA, and New Jersey courts look

to the FLSA regulations for guidance.” (citing Marx v.

Friendly Ice Cream Corp., 380 N.J. Super. 302, 309

(App. Div. 2005))).

App.10a

B.

The Immigration Reform and Control Act of 1986

(IRCA), 8 U.S.C. § 1101 et seq., is designed, in part, to

“prohibit[] the employment of illegal aliens in the

United States.” Hoffman Plastic Compounds, Inc. v.

NLRB, 535 U.S. 137, 147 (2002). To that end, IRCA

states that “[i]t is unlawful . . . to hire . . . for

employment in the United States an alien knowing

the alien is an unauthorized alien . . . with respect to

such employment.” 8 U.S.C. § 1324a(a)(1)(A). The

phrase “unauthorized alien” refers to individuals not

“lawfully admitted for permanent residence” or

“authorized to be . . . employed by this chapter or by

the Attorney General.” Id. at (h)(3).

Among other provisions, IRCA also makes it

unlawful “to continue to employ [an] alien” knowing

the person “is (or has become) an unauthorized alien.”

Id. at (a)(2). The statute, however, does not expressly

bar paying wages to undocumented workers for work

they have already performed.

III.

Lopez maintains that he and Marmic had an

employee-employer relationship under the WHL and

WPL. He contends that his undocumented status did

not nullify that relationship, and that IRCA does not

bar “wage claims by undocumented workers for labor

[they] already provided.” Lopez also argues that his

barter arrangement with Marmic did not change the

nature of their relationship. Finally, Lopez contends

it was error for the trial court to permit testimony

about his knowing use of an invalid SSN, which

served as a proxy for his immigration status.

App.11a

Marmic disputes that it had any employment

relationship with Lopez. Marmic cites to the Appellate

Division’s ruling and maintains that, because Lopez

was “an undocumented alien” under IRCA, there could

not be an “employee-employer relationship between

the parties.” Marmic contends that its barter arrangement with Lopez was a “legally distinct . . . relationship.” In any event, Marmic submits that Lopez’s wage

claim cannot prevail in light of Hoffman Plastic.

Marmic also maintains that the trial court did not

err in allowing testimony about Lopez’s “knowingly

lying in completing the W-4 form,” which Marmic

claims had “nothing to do with his immigration

status.”

All of the amici argue in support of Lopez. The

Department of Labor, Make the Road, Seton Hall, and

the Professors contend that IRCA does not foreclose

Lopez’s ability to recover unpaid wages for work he

already performed. All amici also note that the WPL

and WHL broadly define “employee” without regard to

whether an employee and employer have entered into

a barter agreement.

Several amici maintain it was error to consider

evidence of Lopez’s use of an invalid SSN, which they

contend served as a proxy for his undocumented

status. They submit that a rule allowing such evidence

would dissuade others from filing legitimate wage and

hour claims.

IV.

Marmic argues that federal law precludes recovery

here. At the same time, Marmic states it is not relying

on the doctrine of federal preemption. We briefly

App.12a

address federal preemption for the sake of clarity and

completeness.

A.

Under the United States Constitution, federal

law “shall be the supreme Law of the Land,” U.S.

Const. art. VI, cl. 2, and shall prevail “if there is any

conflict [with] state law,” Gonzales v. Raich, 545 U.S.

1, 29 (2005). But “the historic police powers of the

States [are] not to be superseded by [a] Federal Act

unless that was the clear and manifest purpose of

Congress.” Altria Grp., Inc. v. Good, 555 U.S. 70, 77

(2008) (first alteration in original) (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

The latter principle “applies with particular force

when Congress has legislated in a field traditionally

occupied by the States.” Ibid. And a state’s authority

to enact wage laws that regulate and protect workers

falls within its historic police powers. Fort Halifax

Packing Co. v. Coyne, 482 U.S. 1, 21 (1987); Bedoya v.

Am. Eagle Express Inc., 914 F.3d 812, 818 (3d Cir.

2019).

Acts of Congress preempt state law under the

Supremacy Clause in three situations, English v. Gen.

Elec. Co., 496 U.S. 72, 78 (1990), none of which apply

here. Federal law does not expressly preempt the

WHL and WPL. See ibid. Federal law is not meant to

occupy the field of state employment laws like the

WHL and WPL. See id. at 79; Fort Halifax, 482 U.S.

at 21. And federal law does not actually conflict with

New Jersey’s wage and hour laws. See English, 496

U.S. at 79. As we discuss further below, it is not

“impossible . . . to comply with” the WHL and WPL

and also with IRCA. See ibid. The New Jersey statutes

App.13a

do not “stand[] as an obstacle” to Congress’ objectives.

See Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 141 (1963) (quotation omitted) (upholding a state

agricultural regulation against Supremacy Clause

challenge).

Other jurisdictions have similarly found that

IRCA does not preempt state workers’ compensation

and labor laws. See, e.g., Madeira v. Affordable Hous.

Found., Inc., 469 F.3d 219, 249 (2d Cir. 2006) (finding

that IRCA does not preempt claims by undocumented

workers under New York’s workers’ compensation

law); Sanchez v. Dahlke Trailer Sales, Inc., 897

N.W.2d 267, 276 (Minn. 2017) (Minnesota statute);

Design Kitchen & Baths v. Lagos, 882 A.2d 817, 830

(Md. 2005) (Maryland statute); Dowling v. Slotnik,

712 A.2d 396, 405 (Conn. 1998) (Connecticut statute);

Cont’l PET Techs., Inc. v. Palacias, 604 S.E.2d 627,

631 (Ga. Ct. App. 2004) (Georgia statute); Coma Corp.

v. Kan. Dep’t of Labor, 154 P.3d 1080, 1087 (Kan.

2007) (Kansas statute).

The opposite conclusion—that IRCA preempts

state wage and hour protections—would incentivize

employers to hire undocumented immigrants and pay

reduced wages despite laws to the contrary. As other

courts have observed, such an outcome would

undermine IRCA’s primary goal to prevent the hiring

of undocumented immigrants. See, e.g., Lucas v.

Jerusalem, LLC, 721 F.3d 927, 936 (8th Cir. 2013)

(explaining that “the purpose of federal immigration

policy” is “advance[d]” by eliminating the payment of

wages below minimum wage); Patel v. Quality Inn S.,

846 F.2d 700, 704 (11th Cir. 1988) (“[T]he FLSA’s

coverage of undocumented aliens is fully consistent

with the IRCA and the policies behind it. . . . If the

App.14a

FLSA did not cover undocumented aliens, employers

would have an incentive to hire them.”); Salas v.

Sierra Chem. Co., 327 P.3d 797, 808 (Cal. 2014) (“It

would frustrate rather than advance the policies

underlying federal immigration law to leave

unauthorized alien workers so bereft of state labor law

protections that employers have a strong incentive to

‘look the other way’ and exploit a black market for

illegal labor.”); Serrano, 407 N.J. Super. at 271

(“[R]equiring employers to pay proper wages to

undocumented aliens when the work had been

performed actually furthers the goal of the IRCA” by

leaving “virtually no incentives . . . for an employer to

hire an undocumented alien in the first instance.”

(quoting Flores v. Amigon, 233 F. Supp. 2d 462, 464

(E.D.N.Y. 2002))).

B.

Marmic relies on Hoffman Plastic in support of

its position that IRCA bars Lopez’s wage claim.

Hoffman Plastic involved an undocumented immigrant,

Jose Castro, who was laid off after he engaged in

union organizing activities. 535 U.S. at 140. The

National Labor Relations Board later found that his

employer, Hoffman Plastic Compounds, had violated

the National Labor Relations Act (NLRA) by “rid[ding]

itself of known union supporters.” Ibid. As part of its

award, the Board ordered Hoffman to reinstate Castro

and pay him backpay. Id. at 140-41.

At a compliance hearing before an Administrative

Law Judge (ALJ), Castro admitted he was not born,

or authorized to work, in the United States. Id. at 141.

As a result, the ALJ concluded the relief awarded

conflicted with IRCA. Ibid. Four years later, the

Board reversed and found that Castro was entitled to

App.15a

backpay plus interest. Id. at 141-42. The Board

calculated the “backpay award from the date of

Castro’s termination to the date Hoffman first learned

of Castro’s undocumented status.” Id. at 142.

The United States Supreme Court reversed. It

noted “[t]he Board asks that we . . . award backpay to

an illegal alien for years of work not performed [and]

for wages that could not lawfully have been earned.”

Id. at 148-49 (emphases added). In response, the Court

found “that awarding backpay to illegal aliens runs

counter to policies underlying IRCA.” Id. at 149. The

Court added that “awarding backpay in a case like

this not only trivializes the immigration laws, it also

condones and encourages future violations.” Id. at 150.

Notably, Hoffman Plastic did not focus on an

award of wages for work that had already been

performed. The opinion instead reversed an award for

wages an employee would have earned had he not

been terminated unlawfully. But Castro, the Supreme

Court noted, could not continue to work “without

triggering new IRCA violations.” Id. at 151.

We read Hoffman Plastic in the same way many

other courts have read the decision. Its rationale

applies to backpay—payment for work that has not

actually been performed1—not to the payment of

1 “Back pay seeks to make an employee whole by awarding wages

that would have been earned but for an unlawful firing.”

Martinez v. Mecca Farms, Inc., 213 F.R.D. 601, 604 (S.D. Fla.

2002) (emphasis added); see also 11 Employment Coordinator

Labor Relations § 43:59 (Dec. 2025 update) (“Backpay is most often

awarded when an employer unlawfully discharges an employee,”

with the goal of “reimbursing the employee for earnings lost by

reason of the wrongful termination.”); 5 Larson on Employment

Discrimination § 92.06 (2025) (noting that an award of backpay

App.16a

minimum wages or overtime for work that employees

have already performed. See, e.g., Lucas, 721 F.3d at

933 (“[A]liens, authorized to work or not, may recover

unpaid and underpaid wages under the FLSA.”);

Patel, 846 F.2d at 705-06 (distinguishing an “attempt[]

to recover back pay for being unlawfully deprived of a

job” from “seek[ing] to recover unpaid minimum

wages and overtime for work already performed” and

noting that “[n]othing in the FLSA suggests that

undocumented aliens cannot recover unpaid minimum

wages and overtime under the act”); Lamonica v. Safe

Hurricane Shutters, Inc., 711 F.3d 1299, 1307-08

(11th Cir. 2013) (reaffirming the holding in Patel after

Hoffman Plastic); Madeira, 469 F.3d at 243 & n.23

(citing rulings from United States District Courts in six

districts that “concluded, even after Hoffman Plastic,

that IRCA does not preclude . . . FLSA awards” “for

labor actually and already performed” by

undocumented workers).

Unlike an award of backpay for work not yet

performed, payment for work already completed “does

not itself condone . . . or continue” an IRCA violation;

it instead “ensures that the employer does not take

advantage of the violation.” Madeira, 469 F.3d at 243.

The Appellate Division has applied the same

principle. In Serrano, the appellate court recognized

that “undocumented workers can recover damages

arising out of statutory violations for ‘work already

is ordinarily “based on the amount which, but for the

discrimination, would have been earned” (emphasis added));

Zanetich v. Wal-Mart Stores E., Inc., 123 F.4th 128, 152 (3d Cir.

2024) (Freeman, J., concurring in part and dissenting in part)

(“Back pay is measured from the date of [an employee’s]

discharge to the date of the verdict.” (quotation omitted)).

App.17a

performed,’ such as wage claims under the FLSA.” 407

N.J. Super. at 269-70 (quoting Crespo v. Evergo Corp.,

366 N.J. Super. 391, 398 (App. Div. 2004)). Crespo

involved a claim under the state’s Law Against

Discrimination. In that case, the Appellate Division

held that undocumented workers could not recover

backpay or prospective damages that stemmed from

their termination, pursuant to Hoffman Plastic. 366

N.J. Super. at 401-02. Crespo distinguished its holding

from claims relating to work already performed, including FLSA claims for wages. Id. at 398 (citing cases).

For all those reasons, we conclude that Hoffman

Plastic does not preclude Lopez’s claim for unpaid

wages. We therefore turn to his claim.

V.

A.

Marmic raises a threshold question here as well.

It contends that the parties’ barter agreement—a

rent-free apartment in exchange for labor—established

a “legally distinct . . . relationship” outside of the

employee-employer relationship contemplated by the

WPL and WHL. As a result, Marmic maintains that

the Appellate Division correctly found “there could be

no employee-employer relationship between the

parties.”

Marmic’s argument finds no support in the law.

The type of arrangement Marmic and Lopez had

neither satisfied nor voided the State’s wage and hour

laws.

The WPL and WHL apply broadly to anyone

“suffered or permitted to work by an employer.”

N.J.S.A. 34:11-4.1(b) (WPL),-56a1(f) (WHL) (using

App.18a

parallel language). That standard provides “the

broadest definition of ‘employee’ among the various

pieces of social legislation.” Hargrove, 220 N.J. at 313;

see also Sec’y of Labor v. Lauritzen, 835 F.2d 1529,

1543 (7th Cir. 1987) (Easterbrook, J., concurring)

(“‘suffer or permit to work’ . . . sweeps in almost any

work done on the employer’s premises” and “potentially

any work done for the employer’s benefit or with the

employer’s acquiescence”). Under the facts of this

case, Marmic plainly “suffered or permitted” Lopez to

work as a superintendent at its buildings.

New Jersey statutes also restrict the use of

alternative arrangements. The WPL, for example,

makes clear that barter arrangements cannot substitute

for the statute’s requirements:

It shall be unlawful for any employer to enter

into or make any agreement with any

employee for the payment of wages of any

such employee otherwise than as provided in

this act . . . . Every agreement made in

violation of this section shall be deemed to be

null and void . . . .

[N.J.S.A. 34:11-4.7.]

The WHL similarly notes that “any contract, agreement

or understanding for” employment “at an oppressive

and unreasonable wage . . . shall be void.” N.J.S.A.

34:11-56a3.

The law does permit other forms of payment. The

WHL, for example, allows “the fair value of any food

or lodging supplied by an employer” to be counted

toward wages. N.J.S.A. 34:11-56a1(d); see also

N.J.A.C. 12:56-8.6 (regarding the computation of fair

market value), -8.8 (providing examples). But those

App.19a

in-kind payments are a way to satisfy an employer’s

obligation to pay appropriate wages based on an

hourly rate—not a way around the law’s

requirements. In other words, the WHL does not

sanction the use of barter arrangements as a general

tool to avoid wage and hour requirements.

Limited exceptions to the WHL for summer

camps, conferences, and retreats operated by nonprofit

or religious groups do not apply here. See N.J.S.A.

34:11-56a4.1. Nor do exceptions for independent

contractors and subcontractors, among others.2 See

N.J.S.A. 34:11-4.1(b) (WPL); N.J.A.C. 12:56-16.1

(WHL). In short, there is no broad-based exception to

New Jersey’s wage and hour laws for “barter

arrangements.” As a result, Marmic’s provision of a

rent-free apartment in this case is not proof that it

properly compensated Lopez for his labor.

B.

In rejecting Lopez’s claim for unpaid wages, the

trial court and the Appellate Division faulted Lopez

for not presenting adequate proof of when he worked.

In doing so, the courts overlooked the legal obligation

employers have to keep appropriate records.

Although the parties do not agree on how many

hours Lopez worked, it is not disputed that he did, in

fact, perform work for Marmic. The WPL and WHL

therefore required that Marmic make and preserve

2 The “ABC” test, N.J.S.A. 43:21-19(i)(6)(A) to (C), “governs

whether a plaintiff is an employee or independent contractor for

purposes of resolving a wage-payment or wage-and-hour claim”

under the WPL and WHL. Hargrove, 220 N.J. at 295. The test

does not apply here because Marmic does not assert that Lopez

was an independent contractor.

App.20a

records of Lopez’s hours and the wages paid to him.

N.J.S.A. 34:11-4.6(e) (WPL); -56a20 (WHL).

In administrative wage collection cases, a

rebuttable presumption applies against employers

who fail to abide by that requirement:

Upon an investigation of a wage claim

initiated pursuant to this section or any of

the other State wage and hours laws, if an

employer fails to provide sufficient employee

records, as required to be kept under any

State wage and hour laws, there shall be a

rebuttable presumption that the employee

worked for the employer for the period of

time and for the amount of wages as alleged

in the wage claim.

[N.J.S.A. 34:11-58(d) (section 58(d)).]

Marmic conceded at trial that it neither made nor

kept records of the hours Lopez worked.

Section 58(d) is consistent with the standard

articulated by the United States Supreme Court in

Mt. Clemens. As the Court explained in that case,

employees who seek relief under the FLSA for unpaid

minimum wages or overtime have the burden to prove

that they “performed work for which [they were] not

properly compensated.” 328 U.S. at 686-87. But “it is

the employer who has the duty under . . . the Act to

keep proper records of wages [and] hours” worked. Id.

at 687.

If an “employer’s records are inaccurate or

inadequate . . . , [t]he solution . . . is not to penalize the

employee by denying him any recovery on the ground

that he is unable to prove the precise extent of

App.21a

uncompensated work.” Ibid. In such cases, the Court

held,

an employee has carried out his burden if he

proves that he has in fact performed work for

which he was improperly compensated and if

he produces sufficient evidence to show the

amount and extent of that work as a matter

of just and reasonable inference. The burden

then shifts to the employer to come forward

with evidence of the precise amount of work

performed or with evidence to negative the

reasonableness of the inference to be drawn

from the employee’s evidence. If the

employer fails to produce such evidence, the

court may then award damages to the

employee, even though the result be only

approximate.

[Id. at 687-88.]

The Court underscored that “employer[s] cannot

be heard to complain that the damages lack the

exactness and precision” that could have been measured

had they, the employers, kept the records the FLSA

required. Id. at 688. The Court also stressed that the

result of its holding did not run afoul of “the rule that

precludes the recovery of uncertain and speculative

damages. That rule applies only to situations where

the fact of damage is itself uncertain.” Ibid. (emphases

added). As the Court further explained, “assuming

that the employee has proved that he has performed

work” for which he was not properly paid under the

FLSA, the fact of damage is itself “certain”; “[t]he

uncertainty lies only in the amount of damages” due.

Ibid. (emphasis added).

App.22a

Here, the trial court did not follow the approach

outlined in section 58(d) or Mt. Clemens. Instead of

applying a rebuttable presumption in Lopez’s favor

once it was clear that he had performed work for

Marmic, the court faulted Lopez for “not articulat[ing]

to any specificity” “[t]he total number of hours worked.”

In dismissing his claim, the court declined to

“speculate” on “what the hourly wages were . . . or the

total number of hours worked.”

The Appellate Division likewise observed that

Lopez “failed to proffer any time sheets or other

documents supporting the hours he worked.” The

court did not hold Marmic responsible for not producing

records. The court mistakenly noted that a “burdenshifting analysis only applies where damages”—

meaning the amount owed—“are certain.” Under Mt.

Clemens, however, damages are “certain”—and the

burden shifts to the employer—when it is clear that

money is owed in some amount. See 328 U.S. at 688.

Once again, the evidence in this case reveals that

Lopez performed work for Marmic. He testified about

his duties, and Ruane agreed he performed those

tasks. Ruane disputed the hours Lopez claimed but

testified he could not “be sure” how many hours Lopez

worked. And the company had no records to support

its position. As the Court observed in Mt. Clemens,

“[i]n such a case ‘it would be a perversion of

fundamental principles of justice to deny all relief to

the injured person.’” Ibid. (quoting Story Parchment

Co. v. Paterson Parchment Paper Co., 282 U.S. 555,

563 (1931)).

Under the circumstances, we remand to the trial

court to determine the appropriate amount of damages.

On remand, because Marmic “fail[ed] to provide

App.23a

sufficient employee records, . . . there shall be a

rebuttable presumption that the employee worked for

the employer for the period of time and for the amount

of wages as alleged in the wage claim.” N.J.S.A. 34:1158(d). We defer to the court’s discretion whether to

reopen the evidentiary hearing and allow additional

evidence on the amount of damages. The trial court

should also determine whether Marmic is entitled to

a credit for the fair value of the lodging it provided.

VI.

A.

We turn next to the trial judge’s determination

that Lopez was not credible. The court grounded its

finding on Lopez’s use of an invalid SSN.3 It was error

to dismiss his wage claim on that basis.

The trial court plainly stated its reasons for

finding Lopez not “credible or believable”:

*“He admitted that . . . when he . . . signed the W4, he—he lied. He basically knew that he was required

to tell the truth and required to put down a valid

Social Security number. He knew at the time he wrote

the Social Security number that it wasn’t valid.”

*Lopez “waffled . . . and attempted to not exactly

answer the questions” on cross-examination “regarding

his signature on the [W-4] form just below the

paragraph indicating that if [his response] was

knowingly false, it was perjury.” The court found that

3 As noted in the previous section, the trial court also criticized

Lopez for not being specific about the number of hours he worked.

App.24a

exchange “a basis of [Lopez’s] lack of truth and

veracity in his statements.”

Ultimately, the trial court stated, “I don’t find in

any way, shape or form that the plaintiff’s testimony

in this case is credible.” The Appellate Division found

no error in the decision to allow and consider testimony

on Lopez’s use of an invalid SSN. The court found no

abuse of discretion under N.J.R.E. 401 and 607.

B.

We consider various rules of evidence to assess

whether cross-examination about Lopez’s use of an

invalid SSN was appropriate in this case. To begin,

Rule 401 defines “relevant evidence” as “evidence

having a tendency in reason to prove or disprove any

fact of consequence to the determination of the action.”

To establish a claim for wages and overtime pay,

claimants must demonstrate that they were employees

who performed work for which they were improperly

compensated. 2 Employment Litigation in New Jersey

§ 16.12 (2026); see also Reich v. Gateway Press, Inc.,

13 F.3d 685, 701 (3d Cir. 1994) (interpreting the

FLSA). A person’s immigration status is not relevant

to determine those issues. Lopez therefore contends

that “evidence of his undocumented status” was not

relevant to his wage claims under Rule 401.

Yet Lopez’s use of an invalid SSN was embedded

in the narrative of this case. He completed a W-4 form

to obtain employment with Marmic and provided an

invalid SSN on the form. And Marmic changed its

payment arrangement with Lopez when it learned the

SSN was invalid.

App.25a

Those facts do not answer the overall question of

admissibility. With regard to Rule 401, though, Lopez

was not questioned about an entirely collateral matter

when he was asked about the form at the hearing.

The Appellate Division went on to consider Rule

607 briefly. Rule 607(a) states that, “[f]or the purpose

of attacking or supporting the credibility of a witness,

any party including the party calling the witness may

examine the witness and introduce extrinsic evidence

relevant to the issue of credibility, subject to the

exceptions in (a)(1) and (2).” Subsection (a)(1) notes

“[t]his provision is subject to Rules 405 and 608.”

Rule 405 relates to methods of proving a person’s

character and is not relevant here. Rule 608(c) states,

in part, that “extrinsic evidence is not admissible to

prove specific instances of a witness’ conduct in order

to attack or support the witness’ character for

truthfulness.” Under that rule, had Lopez used an

invalid SSN in an unrelated matter years before, the

evidence could not be used to impeach him in a later

wage claim case. Cf. State v. Parker, 216 N.J. 408, 422

(2014) (holding that cross-examination about a

defendant’s prior use of false names in an unrelated

matter was barred under Rule 608). In other words,

that type of extrinsic evidence could not be used to

challenge his character for truthfulness.4

In this case, the evidence in question was linked

to Lopez’s employment with Marmic. He presented an

4 Subsection (b) of Rule 608 has limited exceptions that allow for

impeachment based on particular, prior false statements. The

exceptions apply to criminal, not civil, matters. See Biunno,

Weissbard & Zegas, N.J. Rules of Evidence, cmt. 4 on N.J.R.E.

608(b).

App.26a

invalid SSN on a W-4 form to get a job as a

superintendent. If evidence like that were generally

admissible in wage and hour cases, a factfinder might

conclude as the trial judge did here: that a claimant

who lied about their SSN cannot be believed and is

therefore not entitled to relief.

Such an outcome would, in effect, foreclose relief

to Lopez and others—individuals an employer hired

knowing they lacked documents that authorized them

to be employed. But the law enables those individuals

to be paid for work they already performed, as

discussed above. To find they are entitled to payment

if they lack an SSN, but not if they try to conceal that

fact, would deny them protections they are entitled to

under the WHL and WPL.

C.

Those concerns elevate the importance of Rule

403 in our analysis. The rule provides, in part, that

“relevant evidence may be excluded if its probative

value is substantially outweighed by the risk

of . . . [u]ndue prejudice, confusion of issues, or

misleading the jury.” N.J.R.E. 403(a).

As we noted in State v. Sanchez-Medina, “evidence

of a [person’s] undocumented immigration status

could appeal to prejudice, inflame certain jurors, and

distract them from their proper role in the justice

system: to evaluate relevant evidence fairly and

objectively.” 231 N.J. 452, 462-63 (2018).

Years before Sanchez-Medina, Judge Carchman

made a similar observation in the context of wage

claims:

App.27a

Credibility is the baseline in any litigation

involving disputed issues of fact. My concern

is that beyond credibility and unless directly

relevant to the issues in dispute, inquiries

into matters of immigration status, including

employment issues, are so fraught with the

potential for undue prejudice that little more

will be heard or considered after . . . inquiry

into such status.

[Serrano, 407 N.J. Super. at 286 (Carchman,

P.J.A.D., concurring).]

Like inquiries into a person’s immigration status,

testimony about the use of an invalid SSN to obtain

employment may inject undue prejudice into a case

about wage and hour claims for this reason: such

evidence can serve as a proxy for a person’s immigration

status. It is widely known that undocumented workers

who were not lawfully admitted to the United States

or permitted to work here cannot obtain a Social

Security number. See 20 C.F.R. § 422.104(a) (listing

categories of individuals eligible for an SSN). A

person’s immigration status and lack of an SSN are

thus commonly intertwined.

Some courts have barred requests for discovery of

a plaintiff’s SSN in FLSA cases because of the

evidence’s minimal probative value, potential for

prejudice, and capacity to undermine the effectiveness

of remedial wage and hour laws. Montoya v. S.C.C.P.

Painting Contractors, Inc., 530 F. Supp. 2d 746, 750

(D. Md. 2008); Galaviz-Zamora v. Brady Farms, Inc.,

230 F.R.D. 499, 501-02 (W.D. Mich. 2005) (noting

“[t]here is no question that the disputed discovery

requests,” including an attempt to discover SSNs and

cards, “are designed to uncover Plaintiffs’ immigration

App.28a

status,” which “is not relevant for purposes of . . .

damages”); Flores, 233 F. Supp. 2d at 464-65.

The trial court here properly barred direct

questioning about Lopez’s immigration status. Yet the

court went on to rely heavily on Lopez’s use of an

invalid SSN to dismiss his lawsuit on credibility

grounds. The court also faulted Lopez by finding, in

part, that he was an “undocumented alien” who was

not entitled to “be paid . . . wages legally.” Under the

circumstances, admitting evidence of Lopez’s use of an

invalid SSN led directly to the dismissal of his case—

even though his employer conceded he had performed

work without being paid wages for several years.

We do not foreclose the admission of evidence of

the use of an invalid SSN to obtain employment in all

wage and hour cases. Going forward, courts must

carefully assess such evidence under Rule 403 prior to

trial. If there is no legitimate purpose other than to

provide a link to a person’s immigration status, the

evidence should be excluded. Courts should evaluate

other reasons proffered to determine whether the

probative value of the sensitive evidence is substantially

outweighed by the risk of undue prejudice. N.J.R.E.

403(a).

In essence, a person’s immigration status cannot

directly or indirectly—through testimony about the

use of an invalid SSN—form the basis to deny relief in

the ordinary course of a wage and hour trial in which

a person requests compensation for work already

performed.

In the rare case when such evidence is admitted

at a jury trial, trial courts must provide appropriate

cautionary instructions, consistent with the above

App.29a

principles, as to how evidence of an invalid SSN may

be used. In doing so, courts may not comment on a

claimant’s immigration status. For bench trials, courts

should state on the record the basis for admitting the

evidence. See Biunno, Weissbard & Zegas, N.J. Rules

of Evidence, cmt. 2 on N.J.R.E. 403 (2026) (“N.J.R.E.

403 is applicable in nonjury cases as well as jury

trials.”).

Our ruling is limited to wage and hour cases. We

do not address the admissibility of evidence in other

settings.

***

As noted above, we remand this matter to the

trial court to determine the appropriate amount of

damages. Because the trial judge relied heavily on

Lopez’s use of an invalid SSN to make credibility

findings against him, we remand to a different judge

for further proceedings.

VII.

For the reasons stated above, we reverse the

judgment of the Appellate Division and remand to the

trial court for further proceedings consistent with this

opinion.

JUSTICES PATTERSON, PIERRE-LOUIS, WAINER

APTER, FASCIALE, NORIEGA, and HOFFMAN join

in CHIEF JUSTICE RABNER’s opinion.

App.30a

OPINION,

SUPERIOR COURT OF NEW JERSEY

(JUNE 20, 2024)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

________________________

SERGIO LOPEZ,

Plaintiff-Appellant,

v.

MARMIC LLC, and MIKE RUANE, individually,

Defendants-Respondents.

________________________

Docket No. A-2391-22

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-6594-19

Before: FIRKO and VANEK, Judges.

PER CURIAM

Plaintiff Sergio Lopez appeals from a March 7,

2023 order dismissing his complaint seeking unpaid

wages under the New Jersey Wage and Hour Law

(WHL), N.J.S.A. 34:11-56(a) to-56(a)41, and New Jersey

Wage and Payment Law (WPL), N.J.S.A. 34:1-4.1 to

4.15, following a bench trial. The trial judge found

App.31a

plaintiff knowingly provided a false Social Security

number on a W-4 form to obtain part-time employment

with defendants Marmic LLC (Marmic) and Mike

Ruane as a superintendent and was barred from

recovering any economic damages for unpaid wages

under the WHL and the federal Immigration Reform

and Control Act of 1986 (IRCA), 8 U.S.C. §§ 1101 to

1507, because he was an undocumented non-citizen

who did not have a valid Social Security number and

could not produce a valid W-4 form. The trial judge

also found plaintiff did not sustain his burden of proof

on the issue of back pay. We affirm.

I.

Factual Background

We derive the following facts from the record and

bench trial. On September 9, 2019, plaintiff filed a

three-count complaint in the Law Division alleging

unpaid overtime in violation of the WHL (count one);

unpaid minimum wages in violation of the WHL

(count two); and failure to pay wages owed in violation

of the WPL (count three). Plaintiff alleged he worked

for Marmic—a residential and commercial realty

management company—and one of its owners—

Ruane1—as a superintendent from June 15, 2015, to

December 3, 2018, at two buildings located in Newark.

Plaintiff alleged Ruane was his direct supervisor and

was responsible for overseeing the day-to-day operations of the buildings and Marmic’s employees. Ruane

1 The record refers to Michael Ruane and Michael Ruane, Jr. as

members of Marmic. However, it appears Ruane, Jr. conducted

all dealings with plaintiff. Thus, all references to “Ruane” in our

opinion refer to Ruane, Jr.

App.32a

was authorized to hire and fire employees, establish

work schedules, and set pay rates.

In his complaint, plaintiff alleged each building

has commercial tenants on the lower levels and

residential units on the upper levels. There were a

total of nine commercial units and eleven residential

units. The commercial units included a laundromat

owned by Ruane, a restaurant, and a barbershop.

Plaintiff alleged he “was required to perform general

maintenance tasks for the [b]uildings,” such as cleaning

the common areas, maintaining equipment, shoveling

snow, clearing the parking lots during the winter,

sidewalk cleanup, repairing the washing machines,

providing “immediate assistance” to the tenants if an

emergency repair was needed, and preparing the

buildings for inspection.

According to plaintiff, he claimed defendants

required him to work four days per week twice per

month, and seven days per week for the other weeks

at designated hours, which he fulfilled. Plaintiff also

alleged he worked “outside of his normal scheduled

hours” for defendants.

At the commencement of his employment, in

exchange for his work, plaintiff alleged defendants

agreed to provide him with an apartment in one of the

buildings and to pay him $400 per week, regardless of

the number of hours he worked. On June 15, 2015,

plaintiff moved into his apartment.

For his work completed during the first two

weeks of his employment, defendants paid plaintiff

the stated salary. However, plaintiff alleged defendants

failed to pay him any of his salary thereafter and

“simply provided him with a free apartment.” Plaintiff

App.33a

claims he made complaints to Ruane about not being

paid wages, and Ruane responded he would pay

plaintiff when he “fixed his documents.” Plaintiff

sought unpaid overtime compensation at the rate of

pay under the WHL. He also sought pay under the

WHL’s minimum wage provisions, attorney’s fees, and

an order restraining defendants from retaliating

against him for participating in this lawsuit.

Defendants filed an answer denying the allegations

in plaintiff’s complaint and asserted a counterclaim.

In their counterclaim, defendants alleged in June

2015, plaintiff agreed to rent an apartment from them

in Newark for $800 per month plus payment of

utilities. Defendants alleged plaintiff “defaulted on the

agreement to pay rent” in December 2018, and defendants filed a landlord tenant action2 in the Essex County

Special Civil Part (the landlord-tenant section).

In their counterclaim, defendants stated that

plaintiff defaulted and a warrant of removal was

entered by the court in the landlord-tenant action on

March 12, 2019. Defendants sought damages from

plaintiff for unpaid rent and utilities, dismissal of the

complaint, and counsel fees. Following a period of

discovery, defendants filed a motion for summary

judgment, which was denied. On August 18, 2023, a

one-day bench trial was conducted.

The Trial

Ruane testified at trial that in June 2015, he was

looking for a superintendent for two buildings owned

by Marmic. At his initial meeting with plaintiff, Ruane

testified the position was for a part-time super2 Docket number LT-3049-19

App.34a

intendent to perform minor repairs and maintenance

of the buildings. Ruane advised plaintiff his salary

would be $1,600 per month and that plaintiff would

pay $800 per month for an apartment in the Marmic

building, which plaintiff accepted. According to Ruane,

plaintiff represented that he had a valid Social Security

number.

Ruane testified a second meeting was held with

plaintiff to fill out the W4 form to permit him to be

legally paid by Marmic. Plaintiff presented a form of

identification to Ruane, and according to plaintiff’s

testimony, he wrote in a Social Security number in the

appropriate box on the W-4 form at Ruane’s behest

even though plaintiff “knew” he did not have a valid

Social Security number. Plaintiff also testified that he

read and understood he was signing the W-4 form

“under penalties of perjury,” even though it was not

written in Spanish, and he could not read English.3

Ruane testified that he relied upon the information

provided by plaintiff in the W-4 form to issue a

paycheck and that at no point during this meeting did

plaintiff indicate that he did not have a valid Social

Security number.

After Marmic paid plaintiff an initial paycheck

for his first two weeks of work, Ruane discovered that

the Social Security number provided by plaintiff on

the W-4 form was invalid. Ruane met with plaintiff

again, informed him the Social Security number was

invalid, and that Marmic’s payroll company could not

legally pay him. Plaintiff admitted at trial Ruane told

3 Plaintiff testified at trial with the aid of a Spanish interpreter.

App.35a

him that he could not be paid because the W-4 form

was invalid.

Subsequently, Ruane offered plaintiff an alternative barter arrangement for his continued employ at

the buildings because he did not have a valid Social

Security number. Plaintiff was offered the apartment

rent and utility free in exchange for his part-time

services as a superintendent. Plaintiff confirmed in

his testimony that he was aware there was a barter

arrangement as stated. No lease or employment

agreement was entered between the parties. Plaintiff

was free to leave the apartment and cease performing

superintendent services at any time without penalty.

Under the barter arrangement, plaintiff’s duties

essentially remained the same as before—taking out

the garbage, mopping the floors, and responding to

tenants’ requests for minor repairs. Plaintiff testified

he only had to perform work for tenants when they

called him, which averaged one to two calls at night,

or five to seven times per week. He set his own

schedule. Plaintiff claimed Ruane asked him to perform

tasks in the laundromat, including repairing and

unclogging the machines. Ruane testified that there

were no specific hours plaintiff had to work, and

plaintiff was not required to be at the premises for any

specified period of time. According to Ruane, the

barter arrangement lasted from June 2015 through

December 2018.

Plaintiff testified he either worked a “long week”

or a “short week.” A long week meant “around [sixty]

hours,” and a short week meant “around [thirty-seven]

hours.” He also claimed he worked “seven days each

week” for defendants. At trial, plaintiff did not present

any written documentation of the amount of hours he

App.36a

worked and did not introduce any evidence of any

unpaid wages or damages allegedly due in support of

the “long” and “short” weeks as he testified to in

seeking payment for back wages. Plaintiff argued he

was paid a “flat weekly salary of $400[], regardless of

how many hours he worked in a week,” plus an

apartment and utilities.

Plaintiff testified that his work responsibilities

for defendants increased over time and included

inspecting the property for leaks, broken pipes, collecting and disposing of garbage, painting, and cleaning.

Plaintiff claimed he was not required by defendants to

“track” the hours he worked, and defendants did not

maintain such records.

Throughout his part-time employment with

Marmic, plaintiff testified that he performed work for

individuals who did not reside in Marmic’s buildings

for cash and was paid $80 to $150 per job. At times,

plaintiff performed these outside jobs five days per

week. Plaintiff further testified that he discussed his

off-site work with Ruane, who did not object.

Sometime in 2018, plaintiff filed a claim with the

New Jersey Department of Labor (NJDOL) seeking

unpaid wages from defendants. The record shows the

NJDOL sent a letter dated July 9, 2018, to Ruane

requesting time records, payroll records, employee

records, payroll taxes, workers’ compensation insurance, bank information, company ownership information, and employment certificates regarding this matter

and scheduled a hearing for July 30, 2018. Approximately two weeks after the letter was sent by the

NJDOL, Ruane responded in writing that he did not

have any time records, payroll tax information, bank

App.37a

information, employee handbook, or employment certificates pertaining to plaintiff.

In his letter, Ruane explained that plaintiff was

given an apartment “valued at $900, including gas,

electric, heat, and hot water, amounting to approximately $250[,] which totals $1,150 in compensation

per month in lieu of an actual hourly rate to perform

part-time duties for the buildings.” Ruane included

the W-4 form that plaintiff filled out, which included his

name, date of birth, and the fictitious Social Security

number. Ruane also provided the Federal Identification number to the buildings, workers’ compensation,

and company ownership information.

On October 2, 2018, the NJDOL sent Ruane a

letter concluding no wages were due to plaintiff.

However, the NJDOL assessed a $750 penalty against

Ruane as a member of Marmic and individually, for

not providing records ($500) and unpaid wages/late

payment ($250).

Ruane testified that following an investigation,

the NJDOL determined that no wages were due

plaintiff, no fee was assessed, and the $750 penalty

assessed was ultimately reduced and settled for $250,

as confirmed in a November 19, 2018 letter from the

NJDOL. The November 19, 2018 letter also confirmed

that no wages were due plaintiff, but plaintiff could

request a wage hearing.

Ruane testified that he decided to terminate the

barter arrangement with plaintiff in the latter part of

2018, which had lasted three-and-a-half years, due to

problems with the work plaintiff was doing for the

tenants and a decline in the quality of the work he

performed. Ruane told plaintiff that he had to start

App.38a

paying rent after a thirty-day grace period. Following

termination of the barter agreement, plaintiff continued

to live in the apartment but refused to pay rent or

vacate the apartment. Marmic filed an eviction action

and sought a judgment of possession and warrant of

removal. Ruane testified that plaintiff owed Marmic

$4,000 in unpaid rent and utilities. Ultimately, plaintiff

vacated the apartment after defendants obtained the

warrant of removal. No other witnesses testified.

Items were moved into evidence, including the W-4

form, and the NJDOL letter. The trial judge requested

proposed findings of fact and conclusions of law from

the parties and reserved decision.

The Trial Judge’s Decision

On March 5, 2023, the trial judge rendered a

comprehensive oral decision. The trial judge determined

plaintiff did not sustain his burden of proof to “prove

more likely than not” that he was owed back monies

for work done for defendants from 2015 through 2018.

The trial judge determined that plaintiff was not

“credible or believable.” The trial judge emphasized that

“the [t]rial court is required to rely upon the veracity

of . . . plaintiff to—make out the initial claim in this

particular case.” And I don’t find . . . plaintiff to be

“credible” “in any way, shape or form.”

In particular, the trial judge found that plaintiff

testified at trial he knew he did not have a valid Social

Security number when he filled in the box on the W-4

form in order to obtain part-time employment with

Marmic. Furthermore, the trial judge also observed

that defendants relied upon plaintiff’s representations

on the W-4 form in order to issue him a paycheck, prior

to discovering the Social Security number was invalid.

The trial judge found plaintiff admitted he was told by

App.39a

Ruane that he could not be paid “because the W-4 form

was invalid.” The trial judge determined plaintiff was

offered an alternative arrangement—a barter

arrangement—to continue to work at the buildings

where he received an apartment, “rent and utility free,”

in exchange for his work at the buildings because he

did not have a valid Social Security number. The trial

judge noted there was no lease or employment

agreement entered between the parties, and plaintiff

was “free to leave the apartment and stop performing

barter services at any time without penalty.”

The trial judge found plaintiff’s work consisted of

mopping the floors, taking out the garbage, and

responding to the tenants’ requests for “minor repairs.”

The trial judge noted that plaintiff was “paid cash” for

work he performed for other individuals. Regarding

hours of work, the trial judge concluded defendants

did not require plaintiff to “track or report” his hours.

The trial court made no findings of fact with regard to

the amount claimed by plaintiff because his proposed

findings of fact “[did] not comport with the testimony”

as presented at trial.

In support of his decision, the trial judge cited

Crespo v. Evergo Corp., 366 N.J. Super. 391, 394 (App.

Div. 2004), where we held such “employee conduct”—

presenting a false Social Security card—for the purpose

of employment barred economic recovery for back pay.

Id. at 401. The trial judge also cited to our Supreme

Court’s decision in Cedeno v. Montclair State Univ.,

163 N.J. 473 (2000), where our Court found plaintiff’s

economic damages claim was barred because plaintiff

misrepresented his criminal record—a prior conviction

for bribery—on the employment application, which

App.40a

statutorily prohibited him from holding a position in

a public university.

The trial judge noted the Cedeno Court envisioned

an extraordinary circumstance, such as a sexual

harassment claim, where there was “a need to vindicate

statutory policies” to compensate an aggrieved party

who could be allowed to seek such compensation but

found “there’s no extraordinary issue in this particular

case” and concluded plaintiff is “statutorily barred” by

federal law from seeking recovery. Cedeno, 163 N.J. at

476-77.

The trial judge also found plaintiff was statutorily

barred from recovery under the IRCA because “it’s

unlawful to employ an unauthorized alien,” and the

employer “can be fined” as well as the employee. The

trial judge relied on the United States Supreme

Court’s holding in Hoffman Plastics Compounds, Inc.

v. NLRB, 535 U.S. 137, 151 (2002), which construed

the IRCA, and concluded an undocumented immigrant

worker could not be awarded back pay because such a

determination would “have unduly entranced upon

the explicit statutory provisions critical to federal

immigration policy expressed in the IRCA.” Ibid. The

trial judge noted that plaintiff worked for defendants

for “two-and-a-half years,” and he “never fixed the

problem.”

As to plaintiff’s claim for damages, the trial judge

found he was “left to entirely speculate, as a jury

would be, if this were a jury case, as to what the hourly

wages were at the time and/or the total number of

hours worked.” The trial judge found plaintiff failed to

carry the burden to prove he did the work. The trial

judge determined “damages in this case are

uncertain.” By way of example, the trial judge found

App.41a

plaintiff was “clearly less than exact” about the

amount of time he worked.

As to the counterclaim, the trial judge found

defendants failed to present proofs for unpaid rent and

utilities. Therefore, the counterclaim was dismissed with

prejudice. A memorializing order dismissing the

matter with prejudice was entered. This appeal

followed.

On appeal, plaintiff argues the trial judge erred

by dismissing his complaint due to his undocumented

status because the trial judge’s determination was

contrary to the IRCA and New Jersey law. Plaintiff

also asserts the trial judge abused his discretion by

allowing and considering testimony concerning plaintiff’s Social Security number on the W-4 form and his

undocumented status, making factual findings and

conclusions of law resulting from plaintiff’s admission,

and impermissibly raising plaintiff’s burden of proof by

incorrectly applying the applicable burden-shifting

framework to his wage claims. Plaintiff also contends

the trial judge erred in finding he was subject to a

barter arrangement with defendants and did not take

judicial notice of the prevailing hourly wage at the

time of trial.

II.

The trial court’s findings of fact are “binding on

appeal when supported by adequate, substantial,

credible evidence.” Cesare v. Cesare, 154 N.J. 394, 41112 (1998); see also Brunson v. Affinity Fed. Credit

Union, 199 N.J. 381, 397 (2009). A trial court’s

credibility determinations are also accorded deference

because the court “‘hears the case, sees and observes

the witnesses, and hears them testify,’ affording it ‘a

better perspective than a reviewing court in evaluating

App.42a

the veracity of a witness.’” City Council of Orange

Twp. v. Edwards, 455 N.J. Super. 261, 272 (App. Div.

2018) (quoting Gnall v. Gnall, 222 N.J. 414, 428

(2015)). “To the extent that the trial court interprets

the law and the legal consequences that flow from

established facts, we review its conclusions de novo.”

Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 329

(2017) (first citing D’Agostino v. Maldonado, 216 N.J.

168, 182; then citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

A.

We first address plaintiff’s argument the trial

judge misconstrued the IRCA. In particular, the trial

judge found § 1324a of the IRCA statutorily barred

plaintiff’s request for recovery for work performed

for defendants and misapplied Hoffman Plastic

Compounds.

The IRCA makes it unlawful for an employer to

hire or continue to employ an unauthorized alien. 8

U.S.C. § 1324a(a)(1) and (2). The IRCA also describes

the verification process that employers must complete

to ensure their hires are authorized to work. 8 U.S.C.

§ 1324a(b).

In Hoffman, the United States Supreme Court

found a National Labor Relations Board (NLRB) order

awarding an undocumented alien backpay was

foreclosed by the IRCA. Hoffman, 535 U.S. at 140. The

Supreme Court described the IRCA as a “comprehensive scheme prohibiting the employment of illegal

aliens in the United States,” and found it “‘forcefully’

made combating the employment of illegal aliens

central to the ‘policy of immigration law.’” Id. at 147.

App.43a

The Supreme Court made the following note about

this scheme:

if an employer unknowingly hires an

unauthorized alien, or if the alien becomes

unauthorized while employed, the employer

is compelled to discharge the worker upon

discovery of the worker’s undocumented

status. § 1324a(a)(2). . . . IRCA also makes it

a crime for an unauthorized alien to subvert

the employer verification system by tendering

fraudulent documents. § 1324c(a). It thus

prohibits aliens from using or attempting to

use “any forged, counterfeit, altered, or

falsely made document” or “any document

lawfully issued to or with respect to a person

other than the possessor” for purposes of

obtaining employment in the United States.

§§ 1324c(a)(1)-(3). Aliens who use or attempt

to use such documents are subject to fines

and criminal prosecution. 18 U.S.C.

§ 1546(b) . . . .

Under the IRCA regime, it is impossible for

an undocumented alien to obtain employment

in the United States without some party

directly contravening explicit congressional

policies. Either the undocumented alien

tenders fraudulent identification, which

subverts the cornerstone of IRCA’s enforcement mechanism, or the employer knowingly

hires the undocumented alien in direct

contradiction of its IRCA obligations.

In Hoffman, an unauthorized alien worked at

Hoffman Plastics and supported a union campaign.

Hoffman Plastics laid off the unauthorized alien and

App.44a

others involved in that campaign. Id. at 140. Charges

were filed with the NLRB, which found the termination

violated the National Labor Relations Act and ordered

the illegally fired workers be reinstated and awarded

backpay. Id. at 140-41. But the Supreme Court

reversed because the unfair labor practice claims

under the NLRA were precluded by the IRCA, and the

NLRB’s “remedy trenches upon a federal statute or

policy outside the [NLRB’s] competence to administer,

the [NLRB’s] remedy may be required to yield”—

specifically that the NLRA conflicted with the IRCA.

Id. at 147.

As the trial judge correctly found, plaintiff is an

undocumented alien expressly included within the

statutory definition of the IRCA. Thus, there could be

no employee-employer relationship between the

parties. As we noted in Crespo, “Hoffman has not

expanded beyond its specific focus. See Zeng Liu v.

Donna Karan Int’l, Inc., 207 F.Supp.2d 191, 192-93

(S.D.N.Y. 2002) (Hoffman did not apply to preclude an

illegal alien’s claims under the federal Fair Labor

Standards Act (FLSA) for work already performed.);

Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F.Supp.2d

1056, 1061-62 (N.D. Cal. 2002) (an illegal alien who

was arrested and detained for fourteen months

immediately following settlement of a FLSA suit

against his employer could proceed with an FLSA

retaliation claim against the employer); Escobar v.

Spartan Security Serv., 281 F.Supp.2d 896-98 (S.D.

Tex. 2003) (plaintiff, who sued his former employer

alleging workplace sexual harassment and retaliation

under Title VII of the Civil Rights Act of 1964, was not

entitled to back pay because he was an illegal alien at

the time of the events but was not barred from his

App.45a

other remedies, including reinstatement and front

pay, because he had subsequently attained his legal

work status prior to trial).”

Here, the record supports the trial judge’s determination that plaintiff “lied” when he completed and

signed the W-4 form and knew he was “required to tell

the truth.” The trial judge properly concluded that

plaintiff was not eligible to work for defendants under

the IRCA and was barred from relief and was

precluded from recovering damages. Plaintiff did not

assert a claim for workplace harassment or other

misconduct while he worked for defendants. Thus, the

trial judge did not err in dismissing plaintiff’s

complaint with prejudice.

B.

Turning to the issue of damages for work already

completed, plaintiff relies on Serrano for support that

he is not barred from recovery under the IRCA. In

Serrano, we held that the undocumented worker was

permitted to recover for work performed. 407 N.J.

Super. at 271; see also Id. at 469-70. Plaintiff also

argues that he met his burden of proving damages but

misplaces reliance on Anderson v. Mt. Clemons Pottery

Co., 328 U.S. 680 (1946). In Anderson, the United

States Supreme Court held:

that an employee has carried out his burden if

he proves that he has in fact performed work

for which he was improperly compensated

and if he produces sufficient evidence to

show the amount and extent of that work as

a matter of just and reasonable inference. The

burden then shifts to the employer to come

forward with evidence of the precise amount

App.46a

of work performed or with evidence to negative the reasonableness of the inference to be

drawn from the employee’s evidence. If the

employer fails to produce such evidence, the

court may then award damages to the

employee, even though the result be only

approximate.

[Id. at 687-88.]

But this burden-shifting analysis only applies where

damages are certain. Id. at 688.

The trial judge considered this burden-shifting

analysis in his decision and concluded that plaintiff

failed to prove a cognizable damages claim. Specifically,

the trial judge found plaintiff’s claim that he worked

thirty-seven or sixty hours per week “not credible” and

noted “[t]here’s no basis for the number of hours

worked.” Moreover, plaintiff failed to proffer any time

sheets or other documents supporting the hours he

worked. The trial judge concluded there was “no basis

of the number of hours worked” and “no judicial notice

of what the hourly wages would have been during that

time frame.” The credibility finding made by the trial

judge here is relevant to the damages analysis, as the

Anderson Court held. Id. at 689.

We also reject plaintiff’s claim that he was “on

call” because he was not required to remain on

Marmic’s premises, and the hours he was potentially

waiting for a call should be taken into consideration.

N.J.S.A. 12:56-5.6 describes when on-call time

constitutes hours worked:

(a) When employees are not required to remain

on the employer’s premises and are free to

engage in their own pursuits, subject only to

App.47a

the understanding that they leave word at

their home or with the employer where they

may be reached, the hours shall not be

considered hours worked. When an employee

does go out on an on-call assignment, only

the time actually spent in making the call

shall be counted as hours worked.

(b) If calls are so frequent or the “on-call”

conditions so restrictive that the employees

are not really free to use the intervening

periods effectively for their own benefit, they

may be considered as “engaged to wait”

rather than “waiting to be engaged.” In that

event, the waiting time shall be counted as

hours worked.

The record belies plaintiff’s contention that he was

“on call.” In fact, contrary to his assertion, plaintiff

testified that he made his own schedule and worked

off-site, without any reservations by Ruane. Moreover,

plaintiff had no minimum hours requirement, and he

was not required to remain on Marmic’s premises.

Thus, plaintiff’s reliance on N.J.S.A. 12:56-5.6 is

misguided.

C.

Plaintiff maintains that the trial judge’s findings

that damages were not established contradicted the

prior denial of defendants’ motion for summary judgment, which he argues constitutes law of the case.

Again, we disagree.

“The law-of-the-case doctrine is a non-binding

rule intended to prevent relitigation of a previously

resolved issue in the same case.” State v. K.P.S., 221

N.J. 266, 276 (2015) (quotations and citations omitted).

App.48a

Ordinarily, the law-of-the-case doctrine “precludes a

court from reexamining an issue previously decided by

the same court, or a higher appellate court, in the

same case.” State v. Reldan, 100 N.J. 187, 208 (1985)

(O’Hern, J., dissenting) (quoting United States v.

Maybusher, 735 F.2d 366, 370 (9th Cir. 1984)).

Importantly, “[a] hallmark of the law of the case

doctrine is its discretionary nature, calling upon the

deciding judge to balance the value of judicial deference

for the rulings of a coordinate judge against those

‘factors that bear on the pursuit of justice and,

particularly, the search for truth.’” Hart v. City of Jersey

City, 308 N.J. Super. 487, 498 (App. Div. 1998)

(quoting Reldan, 100 N.J. at 205).

Our Supreme Court has recognized that “[u]nderlying the [law-of-the-case doctrine] are principles

similar to collateral estoppel. . . . ” K.P.S., 221 N.J. at

277 (second alteration in original) (quoting Reldan,

100 N.J. at 209). Further,

[b]oth collateral estoppel and law of the case

are guided by the “fundamental legal principle

. . . that once an issue has been fully and

fairly litigated, it ordinarily is not subject to

relitigation between the same parties either

in the same or in subsequent litigation.”

However, whereas collateral estoppel may

bar a party from relitigating an issue decided

against it in a later and different case, law of

the case may bar a party from relitigating the

same issue during the pendency of the same

case before a court of equal jurisdiction. One

major distinction between the two doctrines

is that law of the case, unlike collateral

App.49a

estoppel, is subject to the exercise of sound

discretion.

[Ibid. (second alteration in original) (citations

omitted).]

“The trial judge has the inherent power to review,

revise, reconsider and modify interlocutory orders at

any time prior to the entry of final judgment.” C.P. v.

Twp. of Piscataway Bd. of Educ., 293 N.J. Super. 421,

431 (App. Div.1996) (prior denials of defendant’s

motion for summary judgment did not become law of

the case, precluding renewal at the time of trial). A

denial of summary judgment is always interlocutory

and never precludes the entry of judgment for the

movant later in the case. Hart v. City of Jersey City,

308 N.J. Super. 487, 498 (App. Div. 1998). For these

reasons, we reject plaintiff’s argument that the prior

denial of defendants’ motion for summary judgment

constituted law of the case.

D.

We next address plaintiff’s argument that the

judge impermissibly allowed and considered testimony

regarding the fictitious Social Security number on the

W-4 form and his undocumented status. Plaintiff also

contends he met his burden of proving his damages

claim. Again, we are unpersuaded.

The trial judge found plaintiff knew he was

supposed to be truthful at the time he filled out the W4 form and stated:

And it is interesting to note that although he

was—a lot of testimony was taken in this

case with [an] interpreter when he was able

App.50a

to clearly and concisely articulate answers to

all the questions.

When it came to question by cross[-]

examination by defense counsel regarding

his signature on the form just below the

paragraph indicating that if it was knowingly

false, it was perjury. He waffled and—and—

and attempted to not exactly answer the

questions. Which the [c]ourt notes is—finding

a basis for his lack of truth and veracity in

his statements.

Moreover, on cross-examination we note defense

counsel inquired whether plaintiff did not have a

Social Security number because he lacked legal status

in this country. An objection was immediately made,

and the trial judge sustained the objection. Consequently, since there was no cross-examination about

plaintiff’s immigration status, his argument that the

cross-examination was unduly prejudicial under

N.J.R.E. 403 is devoid of merit.

Rule 403, which limits the admissibility of relevant

evidence, provides “relevant evidence may be excluded

if its probative value is substantially outweighed by

the risk of: (a) [u]ndue prejudice, confusion of issues,

or misleading the jury . . . .” In State v. Sanchez-Medina,

our Court considered the prejudicial effect of evidence

concerning a person’s immigration status, explaining

that, “[a]s a general rule, that type of evidence should

not be presented to a jury.” 231 N.J. 452, 462 (2018).

Our Court found that “[i]n most cases, the immigration status of a witness or party is simply

irrelevant, and a jury should not learn about it,” id. at

463, because disclosure of a person’s “‘illegal status in

App.51a

this country is very likely to trigger negative

sentiments in the minds of some jurors.’” Id. at 464

(quoting Serrano v. Underground Utils. Corp., 407

N.J. Super. 253, 274 (App. Div. 2009)).

Here, a bench trial was conducted, and no jury

was tainted. Plaintiff’s reliance on non-precedential

cases is of no moment.4 And, plaintiff stipulated at the

time of trial that he would not introduce any evidence

regarding the validity of any tax identification number.

We also reject plaintiff’s argument that crossexamination regarding his intentionally providing an

invalid Social Security number on his W-4 form was

irrelevant under Rule 401. Rule 401 defines “relevant

evidence” as “evidence having a tendency in reason to

prove or disprove any fact of consequences to the

determination of the action.” Plaintiff’s uncontroverted

deceit in furnishing a false Social Security number

was probative of his fraud and saliently, served to

impeach his credibility.

Moreover, under Rule 607, extrinsic evidence

may be introduced if relevant to a witness’s credibility.

“Although extrinsic evidence may be admitted to

impeach a witness . . . its probative value as impeachment evidence must be assessed independently of its

potential value as substantive evidence.” Green v. N.J.

Mfrs. Ins. Co., 160 N.J. 480-494 (1999). We conclude

4 Plaintiff relies in part on unpublished opinions to support his

position, but such opinions have no precedential value. See

Brundage v. Estate of Carambio, 195 N.J. 575, 592-93 (2008)

(acknowledging that Rule 1:36-3 “provides that ‘[n]o unpublished

opinion shall constitute precedent or be binding upon any court.’”

(quoting R. 1:36-3)).

App.52a

the trial judge did not abuse his discretion in

admitting plaintiff’s testimony on this issue.

E.

Finally, plaintiff contends the trial judge erred by

finding there was a barter arrangement between the

parties because he was simply an employee. On the

contrary, the trial judge duly found that a barter

arrangement was created after defendants discovered

plaintiff provided a fictitious Social Security number.

The trial judge stated:

[P]laintiff admitted he was told by . . . Ruane

that plaintiff could not be paid because the

. . . W-4 form was invalid. . . .

Subsequently, plaintiff was offered an alternative arrangement—a barter arrangement

to continue to work at the buildings. As

plaintiff could not be legally paid has he

provided false [S]ocial [S]ecurity number and

apparently he did not have a valid [S]ocial

[S]ecurity number.

Plaintiff was offered the apartment, rent and

utility free in exchange for plaintiff’s part[]time services around the buildings. . . .

Plaintiff confirmed his testimony that he

was aware there was a barter arrangement

where he received the apartment, rent and

utility free in exchange for his work in the

buildings. . . .

There was no lease or employment agreement

between plaintiff and Marmic. . . .

App.53a

Plaintiff attempts to argue that an employeremployee relationship continued to exist after Marmic

discovered plaintiff provided a fictitious Social

Security Number and thus could not be paid wages.

Plaintiff relies on the “ABC” test under N.J.S.A.

43:21-19(i)(6)(A), (B), and (C), which provides:

Services performed by an individual for

remuneration shall be deemed to be

employment subject to this chapter [(N.J.S.A.

43:21-1 to-71)] unless and until it is shown to

the satisfaction of the division that

(A) Such individual has been and will continue

to be free from control or direction over the

performance of such service, both under his

contract of service and in fact;

(B) Such service is either outside the usual course

of the business for which such service is

performed, or that such service is performed

outside of all the places of business of the

enterprise for which such service is performed;

and

(C) Such individual is customarily engaged in an

independently established trade, occupation,

profession[,] or business.

[Ibid.]

All three provisions must be satisfied under this test;

an entity that fails to prove even one of the elements

is considered an employer under the Unemployment

Compensation Law, N.J.S.A. 43:21-1 to-24.4. Carpet

Remnant Warehouse, Inc. v. N.J. Dep’t of Labor, 125

N.J. 567, 581 (1991); William H. Goldberg & Co. v.

Div. of Emp. Sec., 21 N.J. 107, 113 (1956); Trauma

App.54a

Nurses, Inc. v. Bd. of Rev., 242 N.J. Super. 135, 143

(App. Div. 1990); Bloom v. Div. of Emp’t Sec., Dep’t of

Labor and Industry, 69 N.J. Super. 175, 178-79 (App.

Div. 1961).

The ABC test is used to determine whether a

person is an employee or an independent contractor

and governs “for purposes of resolving a wage-payment

or wage-and-hour claim.” Hargrove v. Sleepy’s, LLC,

220 N.J. 289, 295 (2015). But the ABC test is inapplicable here because whether plaintiff was an employee

of defendants or worked as an independent contractor

is not at issue. Therefore, plaintiff’s argument is

rejected, and the trial judge did not err in concluding

a barter arrangement was created between the parties.

In light of our decision, we need not address

plaintiff’s burden-shifting argument as to his wage

claims. To the extent we have not addressed plaintiff’s

remaining arguments, we conclude they lack sufficient

merit to warrant any further discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

App.55a

ORDER,

SUPERIOR COURT OF NEW JERSEY

(MARCH 7, 2023)

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: ESSEX COUNTY

________________________

SERGIO LOPEZ,

Plaintiff,

v.

MARMIC LLC,

Defendant.

________________________

Docket No.: ESX-L-006594-19

Civil Action

Before: Hon. Robert H. GARDNER, J.S.C.

THE ABOVE MATTER having come before the

Court for a Bench Trial and the Court having reviewed

all submissions from the parties,

IT IS ON this 7th day of March 2023,

ORDERED that Plaintiff’s complaint is DISMISSED for the reasons stated on the record on

March 3, 2023; and it is

FURTHER ORDERED that Defendant’s countercomplaint is DISMISSED for the reasons stated on

the record on March 3, 2023; and it is

App.56a

FURTHER ORDERED that a copy of this Order

shall be served upon all parties/counsel of record within

seven (7) days of the date hereof, per the Court Rules.

/s/ Hon. Robert H. Gardner, J.S.C.

App.57a

TRANSCRIPT OF DECISION,

SUPERIOR COURT OF NEW JERSEY

(MARCH 3, 2023)

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION, CIVIL PART

ESSEX COUNTY

________________________

SERGIO LOPEZ,

Plaintiff,

v.

MARMIC L.L.C. and MIKE RUANE,

Defendants.

________________________

Docket No.: ESX-L-006594-19

Before: Hon. Robert H. GARDNER, J.S.C.

[March 3, 2023 Transcript, p. 3]

THE COURT: All right. This is the opinion of the

Court on Sergio Lopez v Marmic L.L.C. and Mike

Ruane, R-U-A-N-E, L-5 — strike that — 6-5-9-4-19.

This is the opinion of the Court. This was a bench

trial that occurred on August 18, 2022. These are

the — the following findings and fact and conclusions of law.

This court finds that the plaintiff in this matter

has not sustained their burden of proof to prove

App.58a

more likely than not that in fact they were owed

back monies for work done for the defense —

defendants from 2015 through 2018.

And the—also the counterclaim that was filed by

the defendant against the plaintiff for the — four

or five months of rent and/or utilities claimed as

a counterclaim are also dismissed for failure to

make the proofs. Paragraph.

Here are the proposed findings of fact. At least

around 2015 to at least 2019 defendants owned

the property located at 809-815 Sandford Avenue,

Newark, New Jersey also Referred to as 68

Mountain View Place. Trial transcript 81:3-8,

114:13-15 — 115, page 122:12 through 123 and

page 3.

Property had four commercial units and four residential units. Trial transcript 81:12-15. Marmic’s

property is adjoined with another building also

owned by Sandford Street LLC located at 5 —

strike that — 8-2-3 Sandford Street, Newark, New

Jersey. Trial transcript 81:16-20. The Sandford

Street property has five commercial units and

seven residential units. Trial transcript 81:21-25.

At all times relevant to the action defendant Ruane

owned — owned Marmic L.L.C. Trial transcript

114:118 through 115- — :4. Also page 80 line 17.

At all times relevant to the action defendant Ruane

was Sandford Street LLC’s owner. Trial transcript

115:116 — strike that — 16-17. Defendants’ properties, commercial tenants included business such

as a laundry mat, a restaurant and a barber shop.

Trial transcript 20:7-9.

App.59a

From 2004 through present Ruane managed

Marmic reinstated the operations, had the power

to hire and fire its employees, set employee pay

rates and set employee work schedules. Trial

transcript 114:6 through 115- — :12.

In June of 2015 Ruane intended to hire superintendent — to hire for both Marmic and Sandford

Street LLC properties. Trial transcript page 82

lines 10 through 12.

Ruane met with plaintiff and interviewed him for

superintendent’s position. Trial transcript 83:710. Mr. Ruane testified he had an initial meeting

with plaintiff and advised that the position was

part time superintendent entailed minor repairs

and maintenance of the buildings. Trial transcript

83:14-20.

Plaintiff was advised he was going to be paid

$1,600 and plaintiff would pay $800 for an

apartment in the building which plaintiff accepted.

Trial transcript 83:12-21 through 84-15 — :15.

Significantly at the initial meeting plaintiff

represented to Mr. Ruane that plaintiff had a

legitimate social security number. Trial transcript

83:19-22.

Mr. Ruane testified there was a second meeting

where plaintiff had to fill out the W-4 form that

would permit plaintiff wage — would be paid by

Marmic. Trial transcript 87:3-8. Exhibit D-1.

Mr. Ruane testified he understood that a W-4

form was needed to legally provide a paycheck to

plaintiff. Trial transcript 87:3-25 — 3-25. Mr.

Ruane testified at the second meeting with plain-

App.60a

tiff the W-4 form was presented to plaintiff to fill

out and execute. Trial transcript 88:1-5. At that

time, plaintiff presented a form of identification

to Mr. Ruane. Trial transcript 88 — page — :6-8.

Significantly, at no point during the meeting did

plaintiff indicate to Mr. Ruane that plaintiff did

not have a valid social security number. Trial

transcript 88:9-12.

Plaintiff testified he wrote his social security

number in the appropriate box on the W-4 form.

Trial transcript 45:25 through page 46:12.

Significantly, plaintiff testified at trial he filed

out the W-4 form, he knew he did not have a valid

social security number. Trial transcript 47 page

— lines 1 through 11.

Plaintiff testified he read and understood he was

signing the W-4 form under penalties of perjury.

Transcript 47:13- — 13 through line — page 48

line 1, exhibit D-1.

Finally, critically Mr. Ruane testified he relied

upon information contained in the W-4 form to

have Marmic issue plaintiff a paycheck. Transcript

89:5-9.

After Marmic paid plaintiff’s initial paycheck, Mr.

Ruane discovered the social security number provided by plaintiff on the W-4 form was invalid.

Trial transcript 91:13-18. And Mr. Ruane testified

at another meeting with plaintiff informing his

social — social security number provided by

plaintiff was invalid. And Marmic could not

legally pay the plaintiff. Trial transcript 91-page

91:19- — through the 92:15.

App.61a

The plaintiff admitted he was told by Mr. Ruane

that plaintiff could not be paid because the W

form was invalid — W-4 form was invalid.

Transcript page 25 lines 4 through 7.

Subsequently, plaintiff was offered an alternative

arrangement — a barter arrangement to continue

to work at the buildings. As plaintiff could not be

legally paid has he provided false social security

number and apparently he did not have a valid

social security number.

Plaintiff was offered the apartment, rent and

utility free in exchange for plaintiff’s part time

services around the buildings. Trial transcript 90

— page 92 lines 19 through 93- — :6.

Plaintiff confirmed his testimony that he was

aware there was a barter arrangement where he

received the apartment, rent and utility free in

exchange for his work in the buildings. Trial

transcript 54:3 — lines 3 through 7.

There was no lease or employment agreement

between plaintiff and Marmic. Trial — page 94:20

— lines 20 through 95:5. Plaintiff was free to

leave the apartment and stop performing barter

services any time without penalty. Transcript

page 94:23 through 95 — line 1.

Plaintiff’s duties essentially consisted of taking out

garbage twice a week, mopping floors as needed,

respond to tenants’ requests for minor repairs. He

— trial transcript 55:19-56:13. It took him about

thirty minutes a — to take the garbage out once a

week. Transcript 107 — page 107 lines 11

through 108 line 2.

App.62a

Plaintiff testified he mopped the floor of the

buildings two to three times a month. Transcript

page 57 line 11 through 17. It should be noted

that the floors that plaintiff had to mop were

about sixty feet long. Transcript 108 — page 108

lines 3 through 11.

Plaintiff testified he received five to seven calls

per week from tenants, making minor repairs on

the units. Page—transcript page 26 lines 25

through 27-4 and 57 lines 23 through 58 line 1.

He might also receive calls at night from tenants

for emergency purposes. Page 27 lines 5 through 9.

He confirmed he only had to work for the tenants

when he was called by them. Page 58 lines 2

through 4. Plaintiff testified he set his own

schedule. Mr. Ruane did not care about the

schedule he set for himself. Transcript page 51

line 18 through 52-1.

Consistent with plaintiff’s testimony, Mr. Ruane

testified plaintiff had no specific number of hours

plaintiff had to work where plaintiff was required

— at any specified time. Page 91 lines 1 through

8.

Plaintiff did testified that he worked for certain

long weeks and short weeks. Page — transcript

page 30 line 16 through 19. And the hours were

somewhere between 37 hours for a short week

and 60 hours for a long week. Transcript 30 lines

10 through 15.

However this was disputed — it should be noted,

this has been disputed by the plaintiff’s submis-

App.63a

sions, trier of fact indicating a longer number of

hours.

Plaintiff also did perform work for outside of the

individuals who worked in the buildings. And he

paid — was paid cash for this. Trial transcript 57

lines 23 through 38-4. By the way, Mr. Ruane did

not object to that — him doing that kind of work.

Page 39 lines 1 through 5.

Even after plaintiff was terminated from Marmic,

he continued to perform all site cash work —

work for cash. Page 64 lines 20 through 23.

Plaintiff did file a claim with New Jersey

Department of labor for his unpaid wages. Page —

transcript 59 lines 6 through 12. The department

of labor did not — did not advise him that he was

due any unpaid wages from the defendant. It

should be noted at trial plaintiff was impeached —

strike that. Unpaid wage from the defendant.

Page 59:13- — page 62-25.

Apparently, Ruane was requested by the New

Jersey Department of Labor to produce certain

employment records. See Exhibit D-2. The —

apparently Mr. Ruane responded to New Jersey

Department of Labor’s request from a letter of

July 23, 2018. See exhibit D-2.

New Jersey — it should be noted that New Jersey

Department of Labor determined that no lost

wages were due only a penalty of $750 because

the lack of a appropriate book — bookkeeping by

Mr. Ruane. Transcript one — page 100 lines 11

through 14, exhibit D-3. Apparently the — the

fine was ultimately resolved for $250. Trial

App.64a

transcript page 101 lines 19 through 23. Exhibit

D-4.

In the later part of 2018, when Mr. Ruane made

the decision to terminate the barter arrangement

with the plaintiff. Transcript 103 page — line 19

through 23. In — with the tenant’s work as well

as the client — quality of the work. Page 103 lines

24 through 104-18.

You — apparently the plaintiff was relieved of his

position in December of ‘18. Page 121 lines 11

through 14.

Mr. Ruane informed plaintiff he had to start

paying rent after the thirty day grace period.

Page 104 lines 23 through 105-6.

Apparently plaintiff continued to live at the

apartment, refused to pay rent or vacate the

apartment or pay for utilities. Trial transcript 64

lines 10 through 19.

Ultimately, Marmic filed a landlord/tenant matter

to obtain an order — order for removal before

plaintiff would agree to vacate the apartment.

Page 64 lines 24 through 65 line 3. Exhibit D-5.

It should be noted that apparently — Ruane paid

plaintiff at least part of his business — first two

weeks of plaintiff’s employment. Transcript 117

lines 25 through lines 18 through 1.

While working for the defendants, plaintiff did live

in the apartment — basement apartment, at

Ruane’s 823 Sandford Street property. Transcript

page 21 lines 13 through 22.

App.65a

Plaintiff never reached any written agreement with

Ruane considering the value of the apartment he

was living in throughout his employment nor an

employment contract. Never entered into a lease

agreement to live in the apartment or that he had

to pay utilities for the apartment while he was

employed by defendants. Transcript 43 lines 19

through 23, and page 123 lines 21 through 24.

Defendant did pay the plaintiff $400 for the first

two weeks of his employment. Trial transcript

page 22 lines 22 through page 23 line 3, page 23

lines 8 through 10. Apparently, pay — payment

was made by a check. Trial transcript page 23

lines 4 and 5.

Specifically, Ruane told plaintiff to write the June

15th on the W-4 form that he had provided.

Although plaintiff claimed he filled out the form

at a later date. Trial transcript page 65 lines 23

through 66-4.

Plaintiff — defendant — strike that. After the first

two weeks — after the first pay — pay period of

plaintiff’s — plaintiff’s employment, the plaindefendant, Ruane never asked plaintiff to stop

performing any of his job duties. Page 30 lines 1

through 5.

Plaintiff never made any written agreement with

Ruane dur — with regard to work for — he was

doing for — with the plaintiff or any work being

done for the defendants. Trial transcript page 37

lines 8 through 11.

Plaintiff repeatedly made complaint to Ruane

about not being paid for his wages which Ruane

responded he would pay plaintiff when plaintiff

App.66a

fixed his documents. Trial transcript 138 page —

lines 25 through 139-2. Page 36 lines 22 through

37-2.

The Department of Labor investigation occurred

because plaintiff complained about defendant’s

failure to pay wages. Trial transcript page 41

lines 6 through 10 and 17:3.

Plaintiff did not receive any compensation for his

wages from the New Jersey Department of Labor.

Transcript page 61-24 through 62-3 and 63- lines

18 to 25.

Ruane confirmed that all plaintiff’s testimony at

trial was accurate as far as — concerning work

duties and responsibilities plaintiff performed

throughout his employment. Page 129 lines 15

through 17.

Defendant did not require plaintiff to track or

report his hours that he spent working. Trial

transcript 20 through — lines 20 through 25 and

page 52 lines 8 through 11. Nor did the defendant

ever track the hours that the plaintiff worked.

Page 133 lines 21 through 24.

Ruane did complete a document for the New Jersey

Department of Labor verifying defendant did not

maintain any time records for plaintiff’s work,

payroll records, employee records and he didn’t

pay any payroll taxes. Trial transcript 148 lines 2

through 13. Exhibit D-2.

The Court makes no findings of fact with regard

to the amount claimed. Findings — findings of

fact proposed by the plaintiff with regard to the

work hours as they do not comport with the

App.67a

testimony — trial testimony before this Court as

provided by plaintiff and/or defendant in this

matter.

As far as conclusions of law, the Court notes the

Immigration Reform and Control Act, the IRCA

of 1986 8 U.S.C.A. 10 — 1101. That in fact it’s ille

— it’s unlawful to employ an unauthorized alien

under 8 U.S.C.A 13-24(a). An employer can be

fined between $250 and a $1,000. An employee

between a $100 and a $1,000 as well. For — also

for falsifying the documents.

The Court notes there are very few cases that in

fact have been con — construed the — the IRCA.

Hoffman Plastic Compound v the National Labor

Relations Board at 535 U.S. 137 (2002). Appears

to be one of the few — few case — Supreme CourtU.S. Supreme Court cases that have been held on

this particular ca — issue.

Hoffmann was an action for work not — plaintiff’s

word as to what work that had not yet been

performed and terminated through his union

activity. I have in the FLCA implied to un —

undocumented aliens same as citizens took the

benefit — any possible benefit that an employer

could have regarding an employee — employing

the undocumented alien/employee — employees.

The Court notes however there appears to be a

distinction between those benefits that would be

provided by law such as Worker’s Compensation

benefits versus benefits such as back — back or

front pay that would be provided by the — by

employer for work performed.

App.68a

This — this is also noted in a case called Renteria

(phonetic) v Italian Foods Inc., 102 496 a 2003

W.L. 2199B1909 at 6. And this would be a North

District of Illinois case from 2003. Holding

compensatory damages warrant undocumented

aliens but not front or back pay which would

underline the po — underline the policy of the

IRCA which would forbid an employer from

employing undocumented aliens.

There are — there are several other cases that

construed the — the statute. I mentioned Hoff —

Hoffman Plastics before. The Court held that the

— was not allowed to award plaintiff back pay

because plaintiff was an undocumented

immigrant worker and awarded pack pay would

“have unduly entranced upon the explicit statutory

provisions critical to federal immigration policy

expressed in the IRCA.”

Hoffmann has not been overturned or received any

negative treatment in Supreme Court since-since

it was rendered in 2002.

There have been certain differentials including

Hernandez v GBST and New York Inc, a U.S. —

Southern District of New York case of 2006

holding that Hoffmann did not apply to the case

because Hernandez was the plaintiff looking for

recovery of medical expenses, not wages.

There’s also a New Jersey — there’s Crespo v Evergo

Corp. which is 366 New Jersey Superior. 391

(Appellate Division 2004 case.

That — the Court held that because plaintiff was

an undocumented immigrant who’s employment

was statutorily barred and because plaintiff’s

App.69a

damages rose purely out of her termination from

defendants employ and not out of poor treatment

such as sexual — sexual harassment or something

— something extra — extra ordinary. Plaintiff was

barred from not — noneconomic damage recovery.

The Court relied on the holding in Cendo v

Montclair State University at 7 — strike that —

319 New Jersey Superior 148 Appellate Division

case of 1999 affirmed by the Supreme Court in

163 New Jersey 473, 2000.

Cendo — Montclair State University plaintiff was

barred from recovery because it’s primary —

prior conviction for bribery statutorily precluded

him from holding a position in public university.

This clearly — it’s a close analogy to the case-in this

particular matter where the plaintiff was

statutorily barred by the IRSC from being

employed. And the Supreme Court in Cendo that

the — upheld the barring of the — of the payment

being made for barring the recovery.

However in Cendo the Court noted it could

conceive other circumstances such as aggravated

sexual harassment, or some extraordinary basis

where the need to vindicate statutory policies and

to compensate a grieved party for tangible,

physical, emotional harm, could mean that even a

person who’s absolutely disqualified but holding

specific employment could be allowed to seek

compensation for harm suffered during that

employment. Crespo v Evergo Corp., 366 New

Jersey Superior 391 at page 400. Appellate

Division 200.

App.70a

However, that — the — the — there’s no extraordinary issue in this particular case before the

Court. And the plaintiff is — was statutorily

barred by the federal — by the federal law.

The Court also notes under Anderson v Mount

Clemens Pottery Company, 328 U.S. 680 at 1996.

That the employee has carried the burden to — if

they proved in fact they did the work and they

weren’t paid for it. And they produced evidence to

show the amount and extent of the work as a

matter of adjust and reasonable inference.

The Burden then would shift to the defendant to

come to — with evidence of the precise amount of

work done and without that negative evidence toto overcome the inference that in fact it could be

drawn from the employee’s evidence.

They didn’t have — the court also did note the —

the evidence with regard to the employee work

does not have to be exact to have to — with

specific exactitude but the measurement with the

employee has to be kept within reasonable

requests for the — for the requirements of the

Fair Labor Standards Act section 11C.

The rule, however only applies where the damages

are certain and where there — and other issues

of fact the damages itself uncertain, this would

not — this requirement of the employee or —

employee requirements of requiring the employee

records to be exact, would not apply.

The Court note — paragraph. The Court notes in

this particular case damages in this case are

uncertain. Test — there’s testimony from the

plaintiff was clearly less than exact with regard

App.71a

to when he worked, for what amount of time he

worked and — and what days he worked.

He worked certain long work — days, he worked

certain short days. He testified to a short week of

37 and a half hours and sixty hours as a long. But

in fact, the proposed issues and findings of fact

create a substantially longer periods of time.

Also and — and therefore the Court is required to

rely upon the veracity of the plaintiff to — to

make out the initial claim in this particular case.

And I don’t find the — that the plaintiff in this

case to be credible or believable.

He admitted that in fact to — when he — when

he signed on and to — and signed the W-4, he —

he lied. He basically knew that he was required

to tell the truth and required to put down a valid

social security number. He knew at the time he

wrote the social security number that it wasn’t

valid.

And it’s interesting to note that although he was —

a lot of testimony was taken in this case with in

interpreter which he was able to clearly and

concisely articulate answers to all of the questions.

When it came to questions by cross examination

by defense counsel regarding his signature on the

form just below the paragraph indicating that if

it was knowingly false, it was perjury. He waffled

and — and — and attempted to not exactly answer

the questions. Which the Court notes is — finding

a basis of his lack of truth and veracity in his

statements.

App.72a

The Court also notes that despite the Anderson

case, that plaintiff ultimately has the burden of

proof here to show more likely than not that he’s

entitled to recovery.

The number of hours of work, the number of weeks

he worked and — were clearly a matter of complete

speculation. And that this Court is left with no

even reasonable inferences as to the number of

weeks he worked long, the number of weeks he

worked short, hours.

And also the Court notes for the record that the —

that in fact if he had fixed the I9 problem he

would have been entitled to payment from that

date forward. And there’s a case actually a case

from California that would indicate that the issue

was resolved he would be entitled to payments.

He apparently asked several times with regard to

the — to being paid. And then he was — Mr.

Ruane responded the same way. Which was — is

that you’re undocumented, you don’t — you don’t

have a valid social security number if federal i.d.

numbers. And if he fixes the problem he would

get paid. Which he knew throughout the two and

a half years he worked for Mr. Ruane and he

never fixed the problem.

He now turns around and says he’s titled to wages

when he knows — knew full well he wasn’t

qualified to earn those — be paid those wages

legally because he — he was an undocumented

alien.

It’s also — paragraph. This also segues into where

the second issue is with regard to the number of

hours and the calculation.

App.73a

Sufficient evidence needed to — to meet the proof

to show the amount and the extent of work as a

matter of just and reasonable inference under

NJL v. Pepsi Cola, which is a 2002 Appellate

Division case from New Jersey, un — unreported.

The Court does not — takes that admitting that in

fact it is an unreported case. But there has to be

a reasonable inference here. The total number of

hours worked, as I said, it was clearly not

articulated to any specificity by the plaintiff.

No judicial notice was taken of — of the amount of

the prevailing hourly wage to determine whether

in fact any overtime and the amount of overtime

costs would have been. Nor to the amount of — in

fact the hourly wage would — would — there’s no

— would have been through the times that

plaintiff worked in this barter system for the

defense.

There’s no basis of the number of hours worked.

There’s no basis with — no judicial notice of what

the hourly wages would have been during that

time frame. The Court is left to entirely speculate

as a jury would be, if this were a jury case, as to

what the hourly wages were at the time and/or

the total number hours worked.

This is total and leaves — leaves the Court totally

in — in the dark and required to speculate with

no basis in fact, no basis of testimony as to what

— what the number of — the — the hours would

have been.

Also the Court notes for the record that in one of

the answers to one of the plaintiff’s questions, he

does reference that in fact he had some information

App.74a

and some hours listed on his phone. But no body

followed up with that. Certainly the plaintiff’s

attorney didn’t — didn’t elicit from the def —

from the plaintiff what those-those records may

or could have been.

Also a certain amount of those hours could have

been reconstructed based on any kind of messages

he might have had in his phone from that time

period indicating whether the tenants had called

him and so forth.

None of that information was provided to this

Court. Therefore, the Court is left to totally

speculate with regard to the total number of

hours worked and at what rate. And I don’t find

based upon that that the credit — lack of credibility of the plaintiff, that in fact the plaintiff has

made their burden of proof in this matter.

Also, the Court notes D-3 which is the Department

of Labor letter of November 19, 2018 which is in

evidence. That part of the reference there is that

no wages are out — there’s no — no wages are

outstanding in that letter. This is after in fact

apparently the Department of Labor did the

investigation.

There’s also a reference there that the — the

plaintiff wanted more than thirty thousand —

thirty thousand dollars in recovery since he

retained private counsel. But there’s clearly no

indication as to whether in fact that’s the case

here.

Also the deposition of the plaintiff page 39 at the

bottom says no wages were — he admits no wages

were owed. And the trial transcript page 61 lines

App.75a

24 and 62 through lines 25, no wage — he

basically admits no wages were owed.

So, therefore the Court finds based upon that, that

the — that the amount of wages owed — that’s

the basis of this particular claim by the plaintiff

against the defense has no basis.

The Court had also noted under the Reich v

Gateway Press case, 13 F.3d 685 Third Circuit

(1999) case that the employer’s testimony by

itself is sufficient to establish work hours to meet

the burden to — to shift the burden to the

employer to produce the records.

However, the Court also notes the testimony of

the employee has to be credible. And I don’t find

in any way, shape or form that the plaintiff’s

testimony in this case is credible.

Therefore, the Court does not find that the plaintiff

has met the burden of proof in this particular

matter and dismisses the plaintiff’s complaint

with prejudice for the — for the reasons stated.

Paragraph.

As to the counterclaim with regard to the amount

of monies owed by the — by the fact that after the

plaintiff was terminated in December of 2018

while he was still living on the property, he’s owed

rent from — for the — and the utilities that were

— that were expended and rent for amount of

time when he was still living on the property. I

don’t find the defense has sustained its burden of

proof either.

There’s no lease written or oral in this particular

case. No agreement to pay any monies by the

App.76a

plaintiff to the defendant. Also there’s no agreement with regard to utilities.

And once the plaintiff stopped being — providing

services to the defendant, the defendant rightfully

had filed an ejectment action and/or landlord/

tenant action. Apparently with the — the gentlemen under the order for removal was removed

ultimately from the premises.

This was a basement apartment. Mr. Ruane

testified that generally with regard to the other

apartments that he had and the right remaining

aspects of the building which obviously were on

the second — the floors above the commercial

floors had certain value.

There were no comparables offered in this matter

— particular matter. There was no — it’s his

opinion as to what the — this basement apartment

value would have been valued at for which there

was — there was very little testimony. And there

were practically no cross examination as to his

opinions in that regard.

He was never established to be an actual expert I

this case although he is a property manager. I

don’t find that the — that the amount was based

on a one room apartment — basement apartment,

that in any way, shape or form — the defense has

met their burden of proof to show more likely

than not that the value of the property in fact was

$800 a month.

That being the Case, the Court find — does not find

that testimony to be credible based upon the lack

of foundation of the testimony by the — by the

defense. And therefore the Court also enters an

App.77a

— an order dismissing the counterclaim for

failure to make the burden of proof.

So ordered.

(Hearing Concluded)

App.78a

RELEVANT STATUTORY PROVISIONS

8 U.S.C. § 1324a:

Unlawful Employment of Aliens

§1324a. Unlawful employment of aliens

(a) Making employment of unauthorized aliens

unlawful

(1) In general

It is unlawful for a person or other entity–

(A) to hire, or to recruit or refer for a fee, for

employment in the United States an alien knowing

the alien is an unauthorized alien (as defined in

subsection (h)(3)) with respect to such employment,

or

(B) (i) to hire for employment in the United States

an individual without complying with the requirements of subsection (b) or (ii) if the person or

entity is an agricultural association, agricultural

employer, or farm labor contractor (as defined in

section 1802 of title 29), to hire, or to recruit or

refer for a fee, for employment in the United States

an individual without complying with the requirements of subsection (b).

(2) Continuing employment

It is unlawful for a person or other entity, after

hiring an alien for employment in accordance with

paragraph (1), to continue to employ the alien in the

United States knowing the alien is (or has become) an

unauthorized alien with respect to such employment.

App.79a

(3) Defense

A person or entity that establishes that it has

complied in good faith with the requirements of subsection (b) with respect to the hiring, recruiting, or

referral for employment of an alien in the United

States has established an affirmative defense that the

person or entity has not violated paragraph (1)(A)

with respect to such hiring, recruiting, or referral.

(4) Use of labor through contract

For purposes of this section, a person or other

entity who uses a contract, subcontract, or exchange,

entered into, renegotiated, or extended after November

6, 1986, to obtain the labor of an alien in the United

States knowing that the alien is an unauthorized

alien (as defined in subsection (h)(3)) with respect to

performing such labor, shall be considered to have

hired the alien for employment in the United States

in violation of paragraph (1)(A).

(5) Use of State employment agency documentation

For purposes of paragraphs (1)(B) and (3), a

person or entity shall be deemed to have complied

with the requirements of subsection (b) with respect

to the hiring of an individual who was referred for

such employment by a State employment agency (as

defined by the Attorney General), if the person or

entity has and retains (for the period and in the

manner described in subsection (b)(3)) appropriate

documentation of such referral by that agency, which

documentation certifies that the agency has complied

with the procedures specified in subsection (b) with

respect to the individual’s referral.

App.80a

(6) Treatment of documentation for certain

employees

(A) In general

For purposes of this section, if–

(i) an individual is a member of a collectivebargaining unit and is employed, under a collective bargaining agreement entered into between one

or more employee organizations and an association

of two or more employers, by an employer that is

a member of such association, and

(ii) within the period specified in subparagraph

(B), another employer that is a member of the

association (or an agent of such association on

behalf of the employer) has complied with the

requirements of subsection (b) with respect to the

employment of the individual, the subsequent

employer shall be deemed to have complied with

the requirements of subsection (b) with respect to

the hiring of the employee and shall not be liable

for civil penalties described in subsection (e)(5).

(B) Period

The period described in this subparagraph is 3

years, or, if less, the period of time that the individual

is authorized to be employed in the United States.

(C) Liability

(i) In general

If any employer that is a member of an association hires for employment in the United States an

individual and relies upon the provisions of subparagraph (A) to comply with the requirements of subsection

(b) and the individual is an alien not authorized to

App.81a

work in the United States, then for the purposes of

paragraph (1) (A), subject to clause (ii), the employer

shall be presumed to have known at the time of hiring

or afterward that the individual was an alien not

authorized to work in the United States.

(ii) Rebuttal of presumption

The presumption established by clause (i) may be

rebutted by the employer only through the presentation of clear and convincing evidence that the employer

did not know (and could not reasonably have known)

that the individual at the time of hiring or afterward was

an alien not authorized to work in the United States.

(iii) Exception

Clause (i) shall not apply in any prosecution under

subsection (f)(1).

(7) Application to Federal Government

For purposes of this section, the term “entity”

includes an entity in any branch of the Federal

Government.

(b) Employment verification system

The requirements referred to in paragraphs (1)(B)

and (3) of subsection (a) are, in the case of a person or

other entity hiring, recruiting, or referring an individual

for employment in the United States, the requirements

specified in the following three paragraphs:

(1) Attestation after examination of documentation

(A) In general

The person or entity must attest, under penalty

of perjury and on a form designated or established by

the Attorney General by regulation, that it has

App.82a

verified that the individual is not an unauthorized

alien by examining–

(i) a document described in subparagraph (B), or

(ii) a document described in subparagraph (C) and a

document described in subparagraph (D).

Such attestation may be manifested by either a handwritten or an electronic signature. A person or entity

has complied with the requirement of this paragraph

with respect to examination of a document if the document reasonably appears on its face to be genuine. If

an individual provides a document or combination of

documents that reasonably appears on its face to be

genuine and that is sufficient to meet the requirements

of the first sentence of this paragraph, nothing in this

paragraph shall be construed as requiring the person

or entity to solicit the production of any other document

or as requiring the individual to produce such another

document.

(B) Documents

employment

identity

establishing

authorization

both

and

A document described in this subparagraph is an

individual’s–

(i) United States passport;

(ii) resident alien card, alien registration card, or

other document designated by the Attorney

General, if the document–

(I)

contains a photograph of the individual and

such other personal identifying information

relating to the individual as the Attorney

App.83a

General finds, by regulation, sufficient for

purposes of this subsection,

(II) is evidence of authorization of employment

in the United States, and

(III) contains security features to make it

resistant to tampering, counterfeiting, and

fraudulent use.

(C) Documents evidencing employment

authorization

A document described in this subparagraph is an

individual’s–

(i) social security account number card (other

than such a card which specifies on the face that

the issuance of the card does not authorize

employment in the United States); or

(ii) other documentation evidencing authorization of employment in the United States which

the Attorney General finds, by regulation, to be

acceptable for purposes of this section.

(D) Documents establishing identity of

individual

A document described in this subparagraph is an

individual’s–

(i) driver’s license or similar document issued for

the purpose of identification by a State, if it contains

a photograph of the individual or such other

personal identifying information relating to the

individual as the Attorney General finds, by regulation, sufficient for purposes of this section; or

(ii) in the case of individuals under 16 years of

age or in a State which does not provide for

App.84a

issuance of an identification document (other

than a driver’s license) referred to in clause (i),

documentation of personal identity of such other

type as the Attorney General finds, by regulation,

provides a reliable means of identification.

(E) Authority to prohibit use of certain

documents

If the Attorney General finds, by regulation, that

any document described in subparagraph (B), (C), or (D)

as establishing employment authorization or identity

does not reliably establish such authorization or

identity or is being used fraudulently to an unacceptable

degree, the Attorney General may prohibit or place

conditions on its use for purposes of this subsection.

(2) Individual attestation of employment

authorization

The individual must attest, under penalty of

perjury on the form designated or established for

purposes of paragraph (1), that the individual is a

citizen or national of the United States, an alien

lawfully admitted for permanent residence, or an

alien who is authorized under this chapter or by the

Attorney General to be hired, recruited, or referred for

such employment. Such attestation may be manifested

by either a hand-written or an electronic signature.

(3) Retention of verification form

After completion of such form in accordance with

paragraphs (1) and (2), the person or entity must retain

a paper, microfiche, microfilm, or electronic version of

the form and make it available for inspection by officers

of the Service, the Special Counsel for ImmigrationRelated Unfair Employment Practices, or the Depart-

App.85a

ment of Labor during a period beginning on the date

of the hiring, recruiting, or referral of the individual and

ending–

(A) in the case of the recruiting or referral for a

fee (without hiring) of an individual, three years

after the date of the recruiting or referral, and

(B) in the case of the hiring of an individual–

(i)

three years after the date of such hiring, or

(ii) one year after the date the individual’s

employment is terminated, whichever is later.

(4) Copying of documentation permitted

Notwithstanding any other provision of law, the

person or entity may copy a document presented by an

individual pursuant to this subsection and may retain

the copy, but only (except as otherwise permitted under

law) for the purpose of complying with the requirements

of this subsection.

(5) Limitation on use of attestation form

A form designated or established by the Attorney

General under this subsection and any information

contained in or appended to such form, may not be

used for purposes other than for enforcement of this

chapter and sections 1001, 1028, 1546, and 1621 of

title 18.

(6) Good faith compliance

(A) In general

Except as provided in subparagraphs (B) and (C),

a person or entity is considered to have complied with

a requirement of this subsection notwithstanding a

technical or procedural failure to meet such requirement

App.86a

if there was a good faith attempt to comply with the

requirement.

(B) Exception if failure to correct after

notice

Subparagraph (A) shall not apply if–

(i) the Service (or another enforcement agency)

has explained to the person or entity the basis for

the failure,

(ii)the person or entity has been provided a period

of not less than 10 business days (beginning after

the date of the explanation) within which to correct

the failure, and

(iii) the person or entity has not corrected the

failure voluntarily within such period.

(C) Exception for pattern or practice

violators

Subparagraph (A) shall not apply to a person or

entity that has or is engaging in a pattern or practice

of violations of subsection (a)(1)(A) or (a)(2).

(c) No authorization of national identification

cards

Nothing in this section shall be construed to

authorize, directly or indirectly, the issuance or use of

national identification cards or the establishment of a

national identification card.

App.87a

(d) Evaluation and changes in employment

verification system

(1) Presidential monitoring and improvements in system

(A) Monitoring

The President shall provide for the monitoring

and evaluation of the degree to which the employment

verification system established under subsection (b)

provides a secure system to determine employment

eligibility in the United States and shall examine the

suitability of existing Federal and State identification

systems for use for this purpose.

(B) Improvements to establish secure

system

To the extent that the system established under

subsection (b) is found not to be a secure system to

determine employment eligibility in the United

States, the President shall, subject to paragraph (3) and

taking into account the results of any demonstration

projects conducted under paragraph (4), implement

such changes in (including additions to) the requirements of subsection (b) as may be necessary to establish

a secure system to determine employment eligibility

in the United States. Such changes in the system may

be implemented only if the changes conform to the

requirements of paragraph (2).

(2) Restrictions on changes in system

Any change the President proposes to implement

under paragraph (1) in the verification system must

be designed in a manner so the verification system, as

so changed, meets the following requirements:

App.88a

(A) Reliable determination of identity

The system must be capable of reliably determining whether–

(i) a person with the identity claimed by an

employee or prospective employee is eligible to

work, and

(ii) the employee or prospective employee is

claiming the identity of another individual.

(B) Using of counterfeit-resistant documents

If the system requires that a document be

presented to or examined by an employer, the document

must be in a form which is resistant to counterfeiting

and tampering.

(C) Limited use of system

Any personal information utilized by the system

may not be made available to Government agencies,

employers, and other persons except to the extent

necessary to verify that an individual is not an

unauthorized alien.

(D) Privacy of information

The system must protect the privacy and security

of personal information and identifiers utilized in the

system.

(E) Limited denial of verification

A verification that an employee or prospective

employee is eligible to be employed in the United

States may not be withheld or revoked under the

system for any reason other than that the employee or

prospective employee is an unauthorized alien.

App.89a

(F) Limited use for law enforcement

purposes

The system may not be used for law enforcement

purposes, other than for enforcement of this chapter

or sections 1001, 1028, 1546, and 1621 of title 18.

(G) Restriction on use of new documents

If the system requires individuals to present a

new card or other document (designed specifically for

use for this purpose) at the time of hiring, recruitment,

or referral, then such document may not be required

to be presented for any purpose other than under this

chapter (or enforcement of sections 1001, 1028, 1546,

and 1621 of title 18) nor to be carried on one’s person.

(3) Notice to Congress before implementing

changes

(A) In general

The President may not implement any change

under paragraph (1) unless at least–

(i) 60 days,

(ii) one year, in the case of a major change

described in subparagraph (D)(iii), or

(iii) two years, in the case of a major change

described in clause (i) or (ii) of subparagraph (D),

before the date of implementation of the change, the

President has prepared and transmitted to the

Committee on the Judiciary of the House of Representatives and to the Committee on the Judiciary of

the Senate a written report setting forth the proposed

change. If the President proposes to make any change

regarding social security account number cards, the

President shall transmit to the Committee on Ways

App.90a

and Means of the House of Representatives and to the

Committee on Finance of the Senate a written report

setting forth the proposed change. The President

promptly shall cause to have printed in the Federal

Register the substance of any major change (described

in subparagraph (D)) proposed and reported to

Congress.

(B) Contents of report

In any report under subparagraph (A) the

President shall include recommendations for the

establishment of civil and criminal sanctions for

unauthorized use or disclosure of the information or

identifiers contained in such system.

(C) Congressional

changes

review

of

major

(i) Hearings and review

The Committees on the Judiciary of the House of

Representatives and of the Senate shall cause to have

printed in the Congressional Record the substance of

any major change described in subparagraph (D), shall

hold hearings respecting the feasibility and desirability

of implementing such a change, and, within the two

year period before implementation, shall report to

their respective Houses findings on whether or not

such a change should be implemented.

(ii) Congressional action

No major change may be implemented unless the

Congress specifically provides, in an appropriations or

other Act, for funds for implementation of the change.

App.91a

(D) Major changes defined

As used in this paragraph, the term “major

change” means a change which would–

(i) require an individual to present a new card or

other document (designed specifically for use for

this purpose) at the time of hiring, recruitment,

or referral,

(ii) provide for a telephone verification system

under which an employer, recruiter, or referrer

must transmit to a Federal official information

concerning the immigration status of prospective

employees and the official transmits to the

person, and the person must record, a verification

code, or

(iii) require any change in any card used for

accounting purposes under the Social Security

Act [42 U.S.C. 301 et seq.], including any change

requiring that the only social security account

number cards which may be presented in order to

comply with subsection (b)(1)(C)(i) are such cards

as are in a counterfeit-resistant form consistent

with the second sentence of section 205(c)(2)(D) of

the Social Security Act [42 U.S.C. 405(c) (2)(D)].

(E) General revenue funding of social

security card changes

Any costs incurred in developing and implementing any change described in subparagraph (D)(iii)

for purposes of this subsection shall not be paid for out

of any trust fund established under the Social Security

Act [42 U.S.C. 301 et seq.].

App.92a

(4) Demonstration projects

(A) Authority

The President may undertake demonstration

projects (consistent with paragraph (2)) of different

changes in the requirements of subsection (b). No such

project may extend over a period of longer than five

years.

(B) Reports on projects

The President shall report to the Congress on the

results of demonstration projects conducted under

this paragraph.

(e) Compliance

(1) Complaints and investigations

The Attorney General shall establish procedures–

(A) for individuals and entities to file written,

signed complaints respecting potential violations

of subsection (a) or (g)(1),

(B) for the investigation of those complaints which,

on their face, have a substantial probability of

validity,

(C) for the investigation of such other violations

of subsection (a) or (g)(1) as the Attorney General

determines to be appropriate, and

(D) for the designation in the Service of a unit

which has, as its primary duty, the prosecution of

cases of violations of subsection (a) or (g)(1) under

this subsection.

App.93a

(2) Authority in investigations

In conducting investigations and hearings under

this subsection–

(A) immigration officers and administrative law

judges shall have reasonable access to examine evidence of any person or entity being investigated,

(B) administrative law judges, may, if necessary,

compel by subpoena the attendance of witnesses

and the production of evidence at any designated

place or hearing, and

(C) immigration officers designated by the Commissioner may compel by subpoena the attendance of

witnesses and the production of evidence at any

designated place prior to the filing of a complaint

in a case under paragraph (2).

In case of contumacy or refusal to obey a subpoena

lawfully issued under this paragraph and upon application of the Attorney General, an appropriate district

court of the United States may issue an order requiring

compliance with such subpoena and any failure to

obey such order may be punished by such court as a

contempt thereof.

(3) Hearing

(A) In general

Before imposing an order described in paragraph

(4), (5), or (6) against a person or entity under this

subsection for a violation of subsection (a) or (g)(1), the

Attorney General shall provide the person or entity

with notice and, upon request made within a reasonable

time (of not less than 30 days, as established by the

App.94a

Attorney General) of the date of the notice, a hearing

respecting the violation.

(B) Conduct of hearing

Any hearing so requested shall be conducted

before an administrative law judge. The hearing shall

be conducted in accordance with the requirements of

section 554 of title 5. The hearing shall be held at the

nearest practicable place to the place where the person

or entity resides or of the place where the alleged

violation occurred. If no hearing is so requested, the

Attorney General’s imposition of the order shall

constitute a final and unappealable order.

(C) Issuance of orders

If the administrative law judge determines, upon

the preponderance of the evidence received, that a

person or entity named in the complaint has violated

subsection (a) or (g)(1), the administrative law judge

shall state his findings of fact and issue and cause to

be served on such person or entity an order described

in paragraph (4), (5), or (6).

(4) Cease and desist order with civil money

penalty for hiring, recruiting, and

referral violations

With respect to a violation of subsection (a)(1)(A)

or (a)(2), the order under this subsection–

(A) shall require the person or entity to cease and

desist from such violations and to pay a civil

penalty in an amount of–

(i)

not less than $250 and not more than $2,000

for each unauthorized alien with respect to

App.95a

whom a violation of either such subsection

occurred,

(ii) not less than $2,000 and not more than

$5,000 for each such alien in the case of a

person or entity previously subject to one

order under this paragraph, or

(iii) not less than $3,000 and not more than

$10,000 for each such alien in the case of a

person or entity previously subject to more

than one order under this paragraph; and

(B) may require the person or entity–

(i)

to comply with the requirements of subsection (b) (or subsection (d) if applicable)

with respect to individuals hired (or recruited

or referred for employment for a fee) during

a period of up to three years, and

(ii) to take such other remedial action as is

appropriate.

In applying this subsection in the case of a person or

entity composed of distinct, physically separate subdivisions each of which provides separately for the

hiring, recruiting, or referring for employment, without

reference to the practices of, and not under the control

of or common control with, another subdivision, each

such subdivision shall be considered a separate person

or entity.

(5) Order for civil money

paperwork violations

penalty

for

With respect to a violation of subsection (a)(1)(B),

the order under this subsection shall require the

person or entity to pay a civil penalty in an amount of

App.96a

not less than $100 and not more than $1,000 for each

individual with respect to whom such violation

occurred. In determining the amount of the penalty,

due consideration shall be given to the size of the

business of the employer being charged, the good faith

of the employer, the seriousness of the violation,

whether or not the individual was an unauthorized

alien, and the history of previous violations.

(6) Order for prohibited indemnity bonds

With respect to a violation of subsection (g)(1),

the order under this subsection may provide for the

remedy described in subsection (g)(2).

(7) Administrative appellate review

The decision and order of an administrative law

judge shall become the final agency decision and order

of the Attorney General unless either (A) within 30

days, an official delegated by regulation to exercise

review authority over the decision and order modifies

or vacates the decision and order, or (B) within 30

days of the date of such a modification or vacation (or

within 60 days of the date of decision and order of an

administrative law judge if not so modified or vacated)

the decision and order is referred to the Attorney

General pursuant to regulations, in which case the

decision and order of the Attorney General shall

become the final agency decision and order under this

subsection. The Attorney General may not delegate the

Attorney General’s authority under this paragraph to

any entity which has review authority over immigration-related matters.

App.97a

(8) Judicial review

A person or entity adversely affected by a final

order respecting an assessment may, within 45 days

after the date the final order is issued, file a petition

in the Court of Appeals for the appropriate circuit for

review of the order.

(9) Enforcement of orders

If a person or entity fails to comply with a final

order issued under this subsection against the person

or entity, the Attorney General shall file a suit to seek

compliance with the order in any appropriate district

court of the United States. In any such suit, the

validity and appropriateness of the final order shall

not be subject to review.

(f) Criminal penalties and injunctions for

pattern or practice violations

(1) Criminal penalty

Any person or entity which engages in a pattern

or practice of violations of subsection (a)(1)(A) or (a)(2)

shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation

occurs, imprisoned for not more than six months for

the entire pattern or practice, or both, notwithstanding

the provisions of any other Federal law relating to fine

levels.

(2) Enjoining

violations

of

pattern

or

practice

Whenever the Attorney General has reasonable

cause to believe that a person or entity is engaged in

a pattern or practice of employment, recruitment, or

referral in violation of paragraph (1)(A) or (2) of

App.98a

subsection (a), the Attorney General may bring a civil

action in the appropriate district court of the United

States requesting such relief, including a permanent

or temporary injunction, restraining order, or other

order against the person or entity, as the Attorney

General deems necessary.

(g) Prohibition of indemnity bonds

(1) Prohibition

It is unlawful for a person or other entity, in the

hiring, recruiting, or referring for employment of any

individual, to require the individual to post a bond or

security, to pay or agree to pay an amount, or otherwise to provide a financial guarantee or indemnity,

against any potential liability arising under this

section relating to such hiring, recruiting, or referring

of the individual.

(2) Civil penalty

Any person or entity which is determined, after

notice and opportunity for an administrative hearing

under subsection (e), to have violated paragraph (1)

shall be subject to a civil penalty of $1,000 for each

violation and to an administrative order requiring the

return of any amounts received in violation of such

paragraph to the employee or, if the employee cannot

be located, to the general fund of the Treasury.

(h) Miscellaneous provisions

(1) Documentation

In providing documentation or endorsement of

authorization of aliens (other than aliens lawfully

admitted for permanent residence) authorized to be

employed in the United States, the Attorney General

App.99a

shall provide that any limitations with respect to the

period or type of employment or employer shall be

conspicuously stated on the documentation or endorsement.

(2) Preemption

The provisions of this section preempt any State

or local law imposing civil or criminal sanctions (other

than through licensing and similar laws) upon those who

employ, or recruit or refer for a fee for employment,

unauthorized aliens.

(3) Definition of unauthorized alien

As used in this section, the term “unauthorized

alien” means, with respect to the employment of an

alien at a particular time, that the alien is not at that

time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed

by this chapter or by the Attorney General.

App.100a

8 U.S.C. § 1324c:

Penalties for Document Fraud

§1324c. Penalties for document fraud

(a) Activities prohibited

It is unlawful for any person or entity knowingly–

(1) to forge, counterfeit, alter, or falsely make any

document for the purpose of satisfying a requirement of this chapter,

(2) to use, attempt to use, possess, obtain, accept,

or receive or to provide any forged, counterfeit,

altered, or falsely made document in order to

satisfy any requirement of this chapter,

(3) to use or attempt to use or to provide or

attempt to provide any document lawfully issued

to a person other than the possessor (including a

deceased individual) for the purpose of satisfying

a requirement of this chapter, or

(4) to accept or receive or to provide any document

lawfully issued to a person other than the possessor (including a deceased individual) for the purpose

of complying with section 1324a(b) of this title.

(b) Exception

This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity

of a law enforcement agency of the United States, a

State, or a subdivision of a State, or of an intelligence

agency of the United States, or any activity authorized

under chapter 224 of title 18.

App.101a

(c) Construction

Nothing in this section shall be construed to

diminish or qualify any of the penalties available for

activities prohibited by this section but proscribed as

well in title 18.

(d) Enforcement

(1) Authority in investigations

In conducting investigations and hearings under

this subsection–

(A) immigration officers and administrative law

judges shall have reasonable access to examine

evidence of any person or entity being investigated,

and

(B) administrative law judges, may, if necessary,

compel by subpoena the attendance of witnesses

and the production of evidence at any designated

place or hearing.

In case of contumacy or refusal to obey a subpoena

lawfully issued under this paragraph and upon application of the Attorney General, an appropriate district

court of the United States may issue an order requiring

compliance with such subpoena and any failure to

obey such order may be punished by such court as a

contempt thereof.

(2) Hearing

(A) In general

Before imposing an order described in paragraph

(3) against a person or entity under this subsection for

a violation of subsection (a) of this section, the

Attorney General shall provide the person or entity

with notice and, upon request made within a reasonable

App.102a

time (of not less than 30 days, as established by the

Attorney General) of the date of the notice, a hearing

respecting the violation.

(B) Conduct of hearing

Any hearing so requested shall be conducted

before an administrative law judge. The hearing shall

be conducted in accordance with the requirements of

section 554 of title 5. The hearing shall be held at the

nearest practicable place to the place where the person

or entity resides or of the place where the alleged

violation occurred. If no hearing is so requested, the

Attorney General’s imposition of the order shall

constitute a final and unappealable order.

(C) Issuance of orders

If the administrative law judge determines, upon

the preponderance of the evidence received, that a

person or entity has violated subsection (a) of this

section, the administrative law judge shall state his

findings of fact and issue and cause to be served on such

person or entity an order described in paragraph (3).

(3) Cease and desist order with civil money

penalty

With respect to a violation of subsection (a) of this

section, the order under this subsection shall require

the person or entity to cease and desist from such

violations and to pay a civil penalty in an amount of–

(A) not less than $250 and not more than $2,000

for each document used, accepted, or created and

each instance of use, acceptance, or creation, or

(B) in the case of a person or entity previously

subject to an order under this paragraph, not less

App.103a

than $2,000 and not more than $5,000 for each

document used, accepted, or created and each

instance of use, acceptance, or creation.

In applying this subsection in the case of a person or

entity composed of distinct, physically separate subdivisions each of which provides separately for the

hiring, recruiting, or referring for employment, without

reference to the practices of, and not under the control

of or common control with, another subdivision, each

such subdivision shall be considered a separate person

or entity.

(4) Administrative appellate review

The decision and order of an administrative law

judge shall become the final agency decision and order

of the Attorney General unless, within 30 days, the

Attorney General modifies or vacates the decision and

order, in which case the decision and order of the

Attorney General shall become a final order under

this subsection.

(5) Judicial review

A person or entity adversely affected by a final

order under this section may, within 45 days after the

date the final order is issued, file a petition in the

Court of Appeals for the appropriate circuit for review

of the order.

(6) Enforcement of orders

If a person or entity fails to comply with a final

order issued under this section against the person or

entity, the Attorney General shall file a suit to seek

compliance with the order in any appropriate district

court of the United States. In any such suit, the validity

App.104a

and appropriateness of the final order shall not be

subject to review.