California's Undocumented Workforce
Close to 10% of California's workforce consists of undocumented workers. These workers are the foundation of many of California's most important industries, including agriculture and construction. Unfortunately, undocumented workers are also among California's most exploited employees. They are often victims of wage theft, discrimination, and harassment.
The median earnings of undocumented workers are about $20,000 per year, as compared to about $50,000 per year for U.S.-born workers.
California Law Protects The Rights Of Undocumented Workers
All workers in California are protected by the state's anti-discrimination, workplace protection, and wage and hour laws, regardless of their legal status. California laws and court cases affirm that undocumented workers are entitled to workplace protections under the law, regardless of their citizenship status.
In response to the reality that many undocumented workers do not report their employer's violation of the law because of fear of retaliation and/or deportation, California law expressly prohibits employers from reporting or threatening to report undocumented workers or their relatives to authorities in retaliation for the workers' asserting their rights under California law. Employers who violate California's anti-retaliation laws can lose their business licenses and lawyers making such reports can be disbarred.
Recent Developments In California Law
Two recent developments in California Law have strengthened the state's employment protections for undocumented workers.
Assembly Bill 1660 - Effective January 1, 2015, California Assembly Bill No. 1660 (AB 1660) amended the California Fair Employment and Housing Act's (FEHA) definition of national origin discrimination to include "discrimination on the basis of possessing a driver's license granted under Section 12801.9 of the Vehicle Code." (Gov't. Code 12926(v)). This section of the law refers to California's recent provision of driver's licenses to persons who are unable to submit satisfactory proof of legal presence in the United States. AB 1660 represents the California legislature's intent to protect undocumented workers in the workplace.
Salas v. Sierra Chem. Co., 59 Cal. 4th 407 (2014) - The Salas case involved a seasonal worker who worked on the production line for Sierra Chemical Company. Salas sued the company for disability discrimination and other violations under the FEHA after Sierra refused to rehire Salas because he was injured and had work restrictions that required accommodations from the company.
During the lawsuit, Sierra learned that Salas had used another person's social security number and on this basis, Sierra sought to dismiss Salas' claims. The trial court agreed and dismissed Salas' lawsuit on grounds that Salas' fraudulent use of another person's social security number to gain employment served as a total bar to his claims under the affirmative defenses of "unclean hands" and "after-acquired evidence."
After the court of appeal affirmed the trial court's decision, the California Supreme Court reviewed the decision and found:
- California Senate Bill No. 1818 is not preempted by federal immigration law, except to the extent that the bill authorizes an award of lost pay damages for any period after the employer discovers that an employee is not eligible to work in the United States; and
- The doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker's claims under FEHA, noting that a different conclusion would "eviscerate the public policies embodied in the FEHA by allowing an employer to engage in invidious employment discrimination with total impunity."
In an important footnote, the Supreme Court pointed out that its analysis applies only to employers who discover an employee's status after the employee has been discharged or not rehired. Accordingly, if an employer knowingly hired or continued to employ an undocumented worker, then federal law would not preempt lost wage remedies at all.
Have You Been Subjected To Unlawful Conduct?
If your employer has exploited you and/or subjected you to unlawful conduct, you are entitled to protection under the law regardless of your immigration status. Contact Sani Law today to schedule a free consultation. We will aggressively pursue compensation from employers that fail to follow the law.
