Client Advisory

Samantha Delice

In its recent decision in Lopez v. Marmi LLC, the New Jersey Supreme Court clarified the admissibility of evidence of an invalid social security number in wage-and-hour cases. The plaintiff was hired as a superintendent for two buildings and had applied for the job using an invalid social security number. Initially, the parties agreed to a weekly wage and living arrangement, but, on learning that the plaintiff’s social security number was invalid, the defendant changed the terms of the agreement to eliminate the weekly wage. Plaintiff filed a complaint alleging that this arrangement violated New Jersey’s wage-and-hour laws. The trial court dismissed plaintiff’s complaint, based in part upon his finding that the plaintiff’s use of an invalid social security number negatively affected his credibility. The Appellate Division affirmed.

The Supreme Court concluded that the trial court erred in relying on the plaintiff’s use of an invalid social security number to dismiss his lawsuit on credibility grounds. In coming to this conclusion, the Court reasoned that, like inquiries into a party’s immigration status, testimony about the use of an invalid social security number may inject undue prejudice into proceeding because it may serve as a proxy for a party’s immigration status. While the Court did not go so far as to bar all evidence of the use of an invalid social security number in all wage-and-hour cases, it instructed trial courts to “carefully assess such evidence under N.J.R.E. 403” before trial and exclude such evidence “[i]f there is no legitimate purpose other than to provide a link to a person’s immigration status.” Further, the Court cautioned that such evidence should be admitted only in rare cases, and where it is admitted, trial courts must provide a cautionary instruction explaining how such evidence may be used.

The Court’s ruling was explicitly limited to wage-and-hour cases, but clients should anticipate that plaintiffs will attempt to use this case to limit the introduction of such evidence in other cases. In defending cases in which a plaintiff’s use of an invalid social security number may be relevant for reasons other than the plaintiff’s immigration status, it is important to establish facts that support those other bases early in litigation.