As we have described in California’s Expanded Immigration-Related Protections and California Extends Protections for Whistleblowing Employees, several California laws protect employees, regardless of undocumented status, from actual or threatened retaliation for demanding workplace rights.

These state protections of immigrant workers, some of the strongest nationwide, would seem at odds with the federal law (Title 8, section 1324a of the United States Code) making employment of undocumented persons illegal and requiring companies to confirm an applicant’s ability to work in the U.S. by a completed “I-9” form supported by sufficient evidence (e.g., birth certificate, green card).

However, in Salas v. Sierra Chemical (2014), the California Supreme Court confirmed that an undocumented individual’s initiative and ability to land a job –- whether by falsified proof of work authorization or by an employer’s willingness to look the other way – does not then strip that person from this state’s protections from workplace discrimination under the Fair Employment and Housing Act (FEHA).

In Salas, a seasonal worker sued his former employer for FEHA disability discrimination and retaliation, alleging the company did not have the right to refuse to rehire him for a new season and accommodate his disability. He had worked for Sierra Chemical for four seasons, presenting an I-9 and social security card each time. During the last season, he had injured his back twice and had filed for workers’ compensation. The next season, Sierra said it would rehire him when he received a doctor’s release for full duty. It only learned of his undocumented status late in the lawsuit and then asserted it was immune from any FEHA liability because the rehiring, in retrospect, would have violated the above federal law.

The Court rejected the employer’s position. Mr. Salas was able to raise disability discrimination as the basis for Sierra Chemical’s failure to rehire him because consideration of his documented or undocumented status was not a factor in that decision. On the other hand, if Sierra Chemical had been diligent enough to determine Mr. Salas’s status and to have declined his re-employment on that basis, then he would have had no chance of bringing the FEHA claim. The decision turned on Labor Code 3339, created by the 2002 passage of Senate Bill (S.B.) 1818, providing all California workers the “protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law . . . to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”

Mr. Salas’s FEHA rights were not entirely unaffected by his undocumented status. The Court also ruled that Mr. Salas had no right to collect lost wages resulting from any Sierra Chemical disability discrimination from the point that the employer learned he was barred by federal law from acquiring further employment in the U.S.

The employer lessons learned from this decision thus include:

(1) Do not hire workers who cannot satisfy the federal I-9 requirements;

(2) In California’s FEHA, any undocumented worker (whether that status is suspected or actual) is entitled to the protections against unlawful workplace discrimination, harassment and retaliation accorded to all employees; and

(3) On any later discovery that a worker is not (or no longer) eligible for employment under federal law (because of false documentation or any other reason), a California employer is prohibited from continuing that employment. However, because of the potential of a FEHA claim under the Salas guidelines, that employer should promptly obtain legal advice on how to promptly terminate that relationship.

For assistance with any questions on these subjects, you can contact our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Cindy Bamforth, April, 23, 2015