Unauthorized Aliens May Sue For Discrimination

The California Supreme Court has ruled that unauthorized aliens may sue for discrimination under the Fair Employment and Housing Act. The ruling came in a disability discrimination lawsuit brought by an employee who had used another's social security number and card to verify his employment eligibility. Salas v. Sierra Chemical Co., Case No. S196568 (Cal. Supreme Court 6/26/2014).

Senate Bill 1818 provides: “All 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.” The provision was enacted into Civil Code section 3339, Government Code section 7285, Health and Safety Code section 24000, and Labor Code section 1171.5.

The Court ruled that the state law was 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. The Court also ruled that the unclean hands after acquired evidence documents was not an absolute bar, but only affected the remedy available.

I-9 Revamp Delayed

The Department of Homeland Security's United States Citizenship and Immigration Services has delayed the effective date of its I-9 form revisions until April 3, 2009. Read the full text of the announcement.

The revisions, announced in December 2008, will end authorization to accept expired documents, remove documents that are no longer issued from the list of acceptable documents, and make other technical changes. The original federal register announcement is available here.

For now, you should continue to use the existing I-9 Form, which is available here. After April 3, 2009, you should use the new form.

Employer New Year Resolutions

As the New Year begins, here are four suggestions for New Year resolutions to help reduce the risk of employment law liability during the coming year.

1. Prepare job descriptions for every position in your organization. The job description is the most important document in an employee's personnel file. It provides the basis for evaluation of performance. It is the foundation for determining disability and workers compensation issues. To get started, take a look at the MS Word templates for job descriptions on the Microsoft website.

2. Review the job duties of every exempt employee. In recent years, the greatest exposure to liability for employers has been in wage and hour class actions. The most important factor in the multi-million dollar verdicts and settlements is misclassification of nonexempt employees as exempt. You must decide whether or not to treat employees as exempt based on actual job duties not on whether they are paid a salary or by job title. If you need an incentive, the December 26, 2008 issue of "Daily Journal Verdicts and Settlements" reports the following recent settlements: $21 million by Edward D. Jones & Co., $11.2 million by SBC and AT&T, $8.5 million by Unisource, $5.4 million by Kaiser, $2.25 million by EMC and Legato Systems, $1.3 million by Valley Farm Transport, and $900,000 by E-Trade Securities. We discussed wage and hour compliance in a June 29, 2008 post to this blog.

3. Review changes to the FMLA. Congress and the Department of Labor made important changes to the Family and Medical Leave Act rules last year. There is a new form of leave for members of military families, and there are changes to the existing regulations. We discussed these changes in a December 9, 2008 post to this blog, with links to the new rules.

4. Make sure that you are complying with immigration laws. All indications are that the federal government will continue to insist on strict compliance with the laws that prohibit employment of workers who lack authorization to work in the United States. If you knowingly employ someone who lacks such authorization, you have committed a federal crime. To assure that your workplace is in compliance, follow the rules for the I-9 Form. We discussed immigration compliance in an August 3, 2009 post to this blog.

Prison for Immigration Violations

In The News

Since the failure of immigration reform in 2007, U.S. Customs and Immigration Enforcement (ICE) has stepped up its efforts to bring employers into compliance with existing immigration and citizenship rules. Employers must take these efforts seriously, because failure to comply with the rules can lead to prison time. As described by Homeland Security Secretary Michael Chertoff in the Department's online Leadership Journal, criminal arrests went from 165 in 2004 to 863 in 2007. Through May 31, 2008, there had already been 875 arrests.

Recently, an ICE investigation in Nevada led to guilty pleas by a McDonald's franchisee and two of its executives. According to a July 16 Justice Department press release, the franchisee will pay a $1 million fine and serve a year of probation. The franchisee's former vice president faces up to five years in prison and a $250,000 fine. The controller has been charged with a misdemeanor. The investigation of the 11 McDonald's Restaurants that the franchisee operated in the Reno area turned up 58 undocumented aliens working illegally. The plea agreement details how the franchisee's management employed individuals they knew were in the country illegally, including two restaurant managers, by furnishing them with names and Social Security numbers belonging to other individuals.

What Employers Must Do

The immigration laws require employers to verify identity and authorization to work in the United States for every employee they hire. Employers do this by collecting information from new employees on the I-9 Form and examining original documents presented by the employees from those listed on the form as acceptable for verification. The employer must accept the document or documents proffered by the employee so long as they are on the list, and appear to be genuine.

Employers may not collect any information about immigration status until the employee begins employment, and must verify identity and authorization to work within three business days of the commencement of employment. It is illegal to discriminate against an applicant or employee based on national origin or citizenship status, unless the individual is not authorized to work in the United States. For further information about the I-9 process, review the US CIS Handbook for Employers.

Employers must be careful to follow the verification process to the letter. Although undocumented workers do not have all the rights of legal employees (see, for example, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), holding that the NLRB cannot award back pay to undocumented workers), they may sue for unpaid wages, unauthorized discrimination, and are entitled to workers compensation benefits. See Reyes v. Van Elk Ltd., 56 Cal.Rptr.3d 68 (Ct. App. 2007); Farmers Bros. Coffee v. WCAB, 35 Cal.Rptr. 3d 23 (Ct. App. 2005).