Claims, remedies, and discovery when representing undocumented workers

Immigration status is irrelevant to the issue of liability for purpose of enforcing state employment and civil rights laws

2023 March

California has more immigrants than any other state. According to research conducted by the Public Policy Institute of California, around 10.5 million immigrants reside in this state with varying statuses. As of 2021 about 78% of these individuals had lawful status, meaning they were either naturalized U.S. citizens, lawful permanent residents, or had status pursuant to a visa. The remaining 22% were undocumented. (Perez, Cesar Alesi, Mejia, Marisol Cuellar & Johnson, Hans “Immigrants in California Fact Sheet January 2023,” Public Policy Institute of California, https://www.ppic.org/wp-content/uploads/jtf-immigrants-in-california.pdf)

Available claims and damages

Undocumented persons come to California for better work opportunities to improve the economic wellbeing of their families. Put most simply, they are here for survival. They survive by any means and sometimes by obtaining work by any means so they can feed their families. These are some of the most vulnerable and exploited workers, who suffer meal and break violations, underpayment of their minimum and overtime wages, and sometimes harassment, discrimination, and retaliation. When they hire a lawyer to represent them in their employment lawsuit, special considerations and extra protections are required to maximize recovery and protect the worker from immigration-related consequences.

First and foremost, the lawyer must build the necessary rapport with the client to create the safe space for him or her to speak freely about their immigration status and work history.

Next, if the client is a non-citizen, it is important to advise the client to consult with a reputable immigration attorney, not a “notario,” or unlicensed immigration consultant. If your client is now unemployed, advise that they will only be eligible for unemployment benefits if they had work authorization or a valid work permit during the time they were employed. Unfortunately, undocumented workers are not eligible for unemployment benefits.

Next, the attorney must understand which causes of action and damages are available given the worker’s immigration status. As a general matter, pursuant to Labor Code section 1171.5, subdivision (a), Civil Code section 3339, and Government Code section 7285, all workers – regardless of immigration status – are protected under the same laws and have the same rights and remedies available under state law regardless of immigration status, except reinstatement or front pay.

Look to the Labor Code and FEHA

This means that undocumented workers are still protected under the Labor Code and the Fair Employment and Housing Act (“FEHA”).  There are, however, additional protections specific to immigrant employees. For instance, pursuant to Labor Code section 1019, there is a private right of action for an employer’s retaliation against an immigrant employee and for engaging in unfair immigration-related practices.

Pursuant to Labor Code section 1019, subdivision (a), “[i]t is unlawful for an employee or any other person or entity to engage in, or to direct another person or entity to engage in, unfair immigration-related practices against any person for the purpose of, or with the intent of, retaliating against any person for exercising any right protected under this code or by any local ordinance applicable to employees.” Pursuant to subdivision (b), “‘unfair immigration-related practice’ means…(B) [u]sing the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required under Section 1324a(b) of Title 8 of the United States Code… [and] (D) [t]hreatening to contact or contacting immigration authorities.” (Lab. Code, § 1019, subd. (b).)

Furthermore, “[e]ngaging in an unfair immigration-related practice against a person within 90 days of the person’s exercise of rights protected under this code or local ordinance applicable to employees shall raise a rebuttable presumption of having done so in retaliation for the exercise of those rights.” For these violations a plaintiff may file a civil action for equitable relief, statutory penalties, actual damages and attorneys’ fees and costs. (Lab. Code, § 1019 subd. (d)(1), (4).) This includes expert fees. Furthermore, as a consequence to employers, Business and Professions Code section 494.6 calls for suspension of the business license for these violations.

Pursuant to Labor Code section 244, it is considered an adverse employment action when an employer engages in this type of conduct and reports or threatens to report an immigrant worker, even if the report or threat to report to immigration authorities suspected unlawful presence is regarding a family member of the employee.

In situations where the employer’s lawyer participates in this conduct, Business and Professions Code section 6103.7 calls for suspension or disbarment when a lawyer reports or threatens to report the suspected immigration status of a witness or party or a family member of the witness or party in a civil or administrative action after the witness or party has exercised rights related to employment or housing.

The limitations of the law

Equally important is understanding the limitation on remedies when litigating employment claims when the employee does not have work authorization or a valid work permit. Although Government Code section 7285 makes the protections and benefits offered to employees by private employers equally available to undocumented workers, as mentioned above, there is an exception when it comes to back pay and reinstatement.

Senate Bill No. 1818, which extends state-law employee protections and remedies to all workers “regardless of immigration status,” is not preempted by federal immigration law except to the extent it authorizes an award of lost-pay damages for any period after the employer’s discovery of an employee’s ineligibility to work in the United States. Thus, an undocumented worker cannot recover an award of back pay or lost-pay damages for any time after an employer discovers that the worker is undocumented. All other remedies are still available.

At the federal level, most causes of action and remedies under Title VII of the Civil Rights Act, the Americans with Disabilities Act (“ADA”), the Fair Labor Standards Act (“FLSA”) and the National Labor Relations Act (“NLRA”) are also available; however, particular attention must be directed on how damages are claimed regarding reinstatement, front pay, or future lost earnings. All of these are prohibited by federal preemption pursuant to the Immigration Reform and Control Act of 1986 (“IRCA”), which makes it illegal for employers to knowingly hire or continue to employ undocumented workers.

Despite these state and federal limitations, the following remedies are still available to undocumented workers: compensatory damages, punitive damages, wages for work already performed under California laws, and back pay under FEHA and Title VII are available with limitations based on when the employer learned about the undocumented status.

When employers knowingly hire the undocumented

What happens when the employer knowingly hires or employs undocumented persons? “Federal immigration law requires employers to verify the identity and work eligibility of new employees.” (8 U.S.C. § 132a(a)(1)(B)(i).) This means that it is the obligation of employers to verify a new worker’s employment eligibility at the time they are hired. If the employer fails to do so or suspiciously decides to verify employment authorization at some later time, there may be grounds for liability for unfair immigration-related practices as described above, especially when the employer knew that the workers were undocumented.

When the employer knowingly hires an undocumented worker, “there is an avenue for arguments that federal law would not preempt lost wages remedies for violations of state employment laws after the decision in Salas v. Sierra Chem. Co. (2014) 59 Cal.4th 407. Further, an unpublished case citing Salas states that plaintiffs are not barred from recovering their lost wages. (Lepe v. Luft Enters., E067382, at *4-5 (Cal.Ct.App. May 10, 2018).)

In Salas v. Sierra Chem. Co., the court found that since federal immigration law prevents an employer from continuing to employ a worker known to be ineligible (8 U.S.C. § 1324a(a)(2)), any state-law award that compensates an unauthorized immigrant worker for loss of employment during the post-discovery period directly conflicts with the federal immigration law prohibition against continuing to employ workers whom the employer knows are unauthorized immigrants. Such an award would impose liability on the employer for not performing an act (continuing to employ a worker known to be an unauthorized immigrant) that is expressly prohibited by federal law. Thus, federal law preempts state Senate Bill No. 1818 to the extent that it makes a California FEHA lost-pay award available to an unauthorized alien worker for the post-discovery period.

However, the Salas court specifically stated that their preemption analysis for the post-discovery period is limited to employers who discover the plaintiff employee’s unauthorized status after the employee has been discharged or not rehired. Not addressed was the situation in which an employer has knowingly hired or continued to employ an unauthorized alien in violation of federal immigration law (see 8 U.S.C. § 1324a(a)(1)-(2)). Because imposing full liability for lost wages would provide a disincentive for such immigration-law violations, thereby furthering the goals of federal immigration law, in these situations federal law would arguably not preempt lost-wages remedies for violations of state laws like California’s FEHA.

In an unpublished case citing Salas, the court found that when an employer defendant conceded knowledge of plaintiffs’ unauthorized work status, and since defendants were aware of plaintiffs’ unauthorized work status during the time of their employment, defendants actively joined in the violation of federal immigration law. Under this circumstance, the court found that the Salas court holding does not apply, and plaintiffs are not barred from recovering their lost wages. (Lepe v. Luft Enters., E067382, at *4-5.)

Attention must be paid to when the employer knew about the worker’s undocumented status. Such would determine if and how much back pay can be claimed.

Navigating discovery regarding immigrant status

Discussing immigration status can be a distressing conversation for an undocumented worker. Not surprisingly, employers and their counsel attempt to obtain discovery on worker’s immigration history in active litigation regarding Labor Code and FEHA violations. The Ninth Circuit in Rivera v. NIBCO, Inc. (9th Cir. 2004) 364 F.3d 1057, addressed this issue when it prohibited the employer from engaging in discovery to ascertain the immigration status of the plaintiff because immigration status was irrelevant to plaintiff’s standing to bring suit; thus, discovery would impermissibly chill the ability of workers to enforce their rights at work.

In fact, “immigration status is irrelevant to the issue of liability” for purpose of enforcing state labor, employment and civil rights laws, and “no inquiry shall be permitted into a person’s immigrations status unless the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.” (Civ. Code, § 3339, subd. (b).) This is also codified in Government Code section 7285, Health and Safety Code section 24000, and Labor Code section 1171.5. Ultimately, discovery regarding immigration status should not be permitted unless the employer shows by clear and convincing evidence that the information is necessary.

How does this exception apply? In a recent victory for immigrant litigants, the California Court of Appeal for the Sixth Appellate District in Manuel v. Superior Court (2022) 82 Cal.App.5th 719, decided that the narrow statutory exception to allow immigration-status discovery applies only in relation to remedies. In Manuel, the defendant sought discovery regarding the employee’s immigration status, claiming that the information was “necessary to comply with federal immigration law” after the plaintiff allegedly abandoned his employment due to a federal form I-9 audit. (Id. at 725-26.)

Initially, the trial court granted the defendant’s motion to compel this immigration-related discovery, but on appeal, the appellate court held that the exception only applies when plaintiff seeks remedies necessarily in violation of federal immigration law, such as reinstatement or post-discovery backpay. (Id. at 731.) As the plaintiff did not seek either reinstatement or post-discovery backpay, the discovery was not permissible. Thus, the appellate court issued a peremptory writ of mandate directing the trial court to vacate its order compelling the employee to produce immigration related discovery and to deny the defendant’s motion. (Id. at 733-34.)

The Manuel case was a matter of first impression applying the exception in Labor Code section 1171.5 and Salas v. Sierra Chem. Co., so it can now be cited by immigrant-worker advocates to prevent employers from harassing undocumented plaintiffs with discovery related to immigration status.

In the event there are any personal-injury allegations, the Evidence Code goes further to state, “in a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.” (Evid. Code, § 351.2.)

In another victory for immigrant litigants, on October 22, 2022, SB 836 went into effect to immediately reinstate Evidence Code section 352.3, which states, “[i]n a civil action not governed by Section 351.2, evidence of a person’s immigration status shall not be disclosed in open court by a party or his or her attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status.” (Evid. Code, § 351.3, subd. (a).)

Although there is an exception in section (b) that indicates that the section does not apply in cases “in which a person’s immigration status is necessary to prove and element of a claim or an affirmative defense,” there is caselaw that will make this burden difficult for employers to overcome.

Protecting your plaintiff from unlawful discovery

Plaintiff’s status as an undocumented person does not bar him or her from the protections of employment law. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 849.) The 2022 Manuel decision helps protect immigrant workers when they vindicate their rights under the labor laws in conjunction with the Ninth Circuit decision in Rivera v. NIBCO, Inc. to prevent defendants from using discovery to harass or otherwise force your client to disclose immigration- related information.

Ultimately, we must help our clients protect this information, especially when our clients are undocumented. Such information that must be protected includes, but is not limited to, social security numbers, citizenship status, place of birth, length of residence in the United States, place of education, previous and subsequent employment or W-2 or I9 related questions, passports, green cards or permanent residency cards, employment authorizations, driver’s licenses, and any ID cards from the immigrant employee’s country of origin. None of this has anything to do with liability or remedies and should not be disclosed in discovery, so long as the appropriate claims and damages are alleged.