In employment cases, the employer will always depose the plaintiff employee. The defense lawyer will ask a wide variety of questions, not necessarily directly related to whether discrimination occurred or not. They may ask for driver’s license numbers, acquaintances at work, out of work. In one disability case, the defense lawyer even asked a few questions of my client regarding her love life. I don’t know. Depositions are a discovery device. So, any question that relates reasonably to potentially admissible evidence is fair game.
Lately, many defense lawyers are asking questions regarding the social security number of an employee. The SSN is a pretty good tool for searching public data bases. I am sure they also hope to add to the employee’s apprehension about the lawsuit process. If the employee is Hispanic, then apprehension will increase substantially. if the Hispanic client is here illegally, then he/she will not have a valid SSN. Many defense lawyers know that. Mike Maslanka discusses a case where that issue was raised in a deposition. See Mike’s blog post.
The defense lawyer had the SSN from when the employee, Bella Viveros applied for the job. But, the defense started asking questions regarding the validity of her SSN. The employee’s lawyer told her to not answer those questions. The employee’s lawyer then sought a protective order, a ruling from the trial judge that the employee did not have to answer such questions. The trial judge granted the protective order. The defense then moved for a mandamus, a ruling by an appellate court to force the trial judge to change its ruling.
On appeal to the Fourth Court of Appeals in San Antonio, the court ruled for the defense lawyer. See decision in In Re K.L. & J. Limited Partnership.
The court found that the defense lawyer should have an opportunity to ask questions regarding the validity of the SSN and toi make sure she is truly who she says she is – supposedly to determine whether she has made similar (employment) claims in the past or has criminal history. The employer says they could not locate the employee’s name in any national data base of SSN holders. So, they should have the opportunity to examine the validfity of her SSN. The court of appeals did find that the employer could not ask questions regarding the employee’s citizenship.
As Mike Maslanka adds, this is an area of hot debate. I am sure there will be more caselaw and more disputes regarding this issue. At first blush, it seems this should be a non-issue. If the employer had concerns about citizenship, then it should not have hired the employee in the first place. But, it is true that if an employer learns of details later that would have caused concern at the time of hiring, then that new information could undermine the employee’s claim for lost pay. But, this could all lead to questions regarding what the employer knew and when did it know it. In the end, questions regarding citizenship and SSN’s could cause more trouble for the employer than they are worth.