Legal Protections for Undocumented Workers in California – Part 1: Undocumented Workers are Covered by California’s Discrimination and Wage and Hour Laws

California has a massive number of undocumented workers, with estimates ranging from around two to three million people (out of a total workforce of around 19 million people). These workers perform critical services across many sectors, including agriculture, construction, and hospitality. They are often subjected to some of the worst working conditions and abuses imaginable. 

California also has some of the strongest worker protection laws in the United States. Workers can employ these laws in court to ensure that they are free from unlawful harassment, discrimination, and retaliation for engaging in protected activity. They can also use these laws to recover wages that they have earned but not been paid.

Part one of this blog post addresses the question of whether undocumented workers are covered by California employment and wage and hour law. This question is important because if the answer is no, then employers will be incentivized to hire undocumented workers whom they can treat unlawfully with impunity.

Part two will address the equally important question of whether employers can use the discovery process in litigation to determine whether the worker bringing the case is documented or not, because, if the answer is yes, then the risk of bringing such cases will be too high for many undocumented workers to take.

Federal Law and the Hoffman Decision

Federal immigration law, as expressed by the United States Congress in the Immigration Reform and Control Act of 1986 (IRCA),[1] makes it unlawful for any employer “to continue to employ [an] alien in the United States knowing the alien is … an unauthorized alien with respect to such employment.” (8 U.S.C. § 1324a, subd. (a)(2).) It also makes it unlawful for employers to knowingly to hire undocumented workers and for employees to use fraudulent documents to establish employment eligibility. (8 U.S.C. § 1324a, subd. (a)(1).)

In Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 148  (Hoffman) the US Supreme Court considered the impact of IRCA on the National Labor Relations Board (NLRB)’s ability to award “backpay” to undocumented workers. (In this context, the term backpay refers to the money that the plaintiff would have earned from the date of his termination until the company learned of his undocumented status.) The plaintiff in Hoffman was laid off from his job mixing chemical compounds after he joined a union organizing campaign. He testified that he was born in Mexico, was not legally authorized to work in the United States, and had used a false birth certificate in order to gain employment.

Chief Justice WIlliam Rehnquist, writing for a 5-4 majority, found that IRCA preempted the NLRB’s ability to award backpay under such circumstances: 

[A]llowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. However broad the Board’s discretion to fashion remedies when dealing only with the NLRA, it is not so unbounded as to authorize this sort of an award. (535 U.S. at 152.)

Accordingly, the US Supreme Court held that the NLRB could not award backpay to an undocumented worker “for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud.” (535 U.S. at 149.)

The California Legislature’s Response to Hoffman

Hoffman was decided in 2002. The California Legislature responded to Hoffman that same year by enacting Senate Bill No. 1818. SB 1818 created California Labor Code section 1171.5 (among other statutes), which declared that, “[a]ll protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”

Furthermore,

[f]or purposes of enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.

This was not an entirely new concept in California. For example, in 1998, in a case called Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 849, the California Court of Appeal held that the plaintiff, who was undocumented, was entitled to all the protections available under employment law while she was employed. Accordingly, she was not barred from bringing sexual harassment claims against her employer.

Salas v. Sierra Chemical Co.: The California Supreme Court Weighs In

The California Supreme Court considered the question of whether SB 1818 was preempted by IRCA in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 414.[2] In that case, the plaintiff sued his former employer for failure to accommodate his disability and retaliation for filing a workers’ compensation claim. The employer argued that the plaintiff could not proceed with his lawsuit because it had subsequently learned that he had used a false social security number when applying for work. 

The precise issues before the California Supreme Court in Salas were (1) was SB 1818 preempted by IRCA; and (2) whether the plaintiff’s use of a false social security number barred his claims under the after-acquired evidence doctrine and the unclean hands doctrine.

Addressing the preemption issue, the California Supreme Court considered each of the various types of preemption (express, field, conflict, and obstacle) and found that none of them applied. The court noted that IRCA did not make it a crime for undocumented workers to engage in work. Rather, IRCA focused on the hiring process. Furthermore, the consequences of holding that SB 1818 was preempted would effectively immunize employers who discriminated against their workers or failed to pay them the wages that they had earned.[3] In a perverse way, that result would incentivize employers to hire undocumented workers because such workers would not be able to sue them to collect unpaid wages or to stop harassment.

Accordingly, the Salas court held that allowing a worker to recover damages for lost wages for the time period prior to the employer discovering that the worker was undocumented was not preempted by IRCA. However, federal law did preempt an award of lost wages for the time period after the employer learned about the worker’s immigration status.

Furthermore, SB 1818’s protections extended “even to those unauthorized aliens who, in violation of federal immigration law, have used false documents to secure employment.” 59 Cal.4th at 426. Thus, “if an employer hires an undocumented worker, the employer will also bear the burden of complying with this state’s wage, hour and workers’ compensation laws.” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460.) 

Turning to the evidentiary doctrines at issue, the California Supreme Court concluded that the after-acquired evidence doctrine did not completely bar the plaintiff’s wrongful termination claims.[4] Rather, it only limited the remedies available to the plaintiff because reinstatement, promotion, and pay for the time period after the employer discovered the plaintiff’s immigration status would be “inequitable and pointless.” (See McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, 362.) The same was true of the unclean hands defense.[5]

Conclusion

California law provides that undocumented workers can recover backpay both for work actually performed but not compensated and for unpaid wages from the date of termination until the date that the employer discovers the workers’ undocumented status. That rule is not preempted by federal law. 

This common-sense rule protects and promotes the public policies embodied in California’s discrimination and wage and hour laws. It also ensures that employers are not incentivized to hire undocumented workers.

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[1]The Immigration Reform and Control Act of 1986 prohibits the employment of undocumented workers in the United States. It requires employers to verify that prospective employees are eligible to work in the United States (8 U.S.C. § 1324a(b)), prohibits employers from hiring those unable to provide documents establishing employment eligibility (id., § 1324a(a)(1)), and compels employers to immediately discharge any unauthorized alien worker upon discovery of the worker’s unauthorized status.

[2] Under the United States Constitution’s supremacy clause (U.S. Const., art. VI, cl. 2), federal law can preempt or supersede state law. Hoffman did not address the question of whether IRCA preempts state law.

[3]  Other courts had previously noted this reality. (See Sure–Tan, Inc. v. NLRB (1984) 467 U.S. 883, 893–894 [recognizing that enforcing labor laws on behalf of undocumented aliens reduces an employer’s incentive to unlawfully hire them]; Reyes v. Van Elk, Ltd. (2007) 148 Cal.App.4th 604, 617 [“Allowing employers to hire undocumented workers and pay them less than the wage mandated by statute is a strong incentive for the employers to do so, which in turn encourages illegal immigration.”]; Farmer Brothers Coffee v. Workers’ Comp. Appeals Bd. (2005) 133 Cal.App.4th 533, 540 [if unauthorized aliens were to be denied state labor law protections, “unscrupulous employers would be encouraged to hire aliens unauthorized to work in the United States, by taking the chance that the federal authorities would accept their claims of good faith reliance upon immigration and work authorization documents that appear to be genuine”].)

[4] The doctrine of after-acquired evidence refers to an employer’s discovery, after an allegedly wrongful termination of employment or refusal to hire, of information that would have justified a lawful termination or refusal to hire. (See, e.g., White & Brussack, The Proper Role of After–Acquired Evidence in Employment Discrimination Litigation (1993) Boston College L.Rev. 49.)

[5] The equitable doctrine of unclean hands may limit the remedies available to a plaintiff who has acted unconscionably, in bad faith, or inequitably.