©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 129 In that same case, when the employer argued that allowing wage suits by unauthorized workers would encourage illegal immigration, the Court of Appeal disagreed, saying “that many illegal aliens come to this country to gain the protection of our labor laws. Rather it is the hope of getting a job—at any wage—that prompts most illegal aliens to cross our borders.”515 Another California Court of Appeal has held that an undocumented worker who was injured on the job is entitled to workers’ compensation, negating the employer’s argument that federal immigration law preempts state labor law protections for undocumented workers.516 The Ninth Circuit upheld a $1.1 million dollar jury verdict for an Italian store manager whose Beverly Hills employer dismissed him when his visa expired.517 The employee claimed his termination was not for good cause, as required by his employment contract. The employer disagreed, arguing that under IRCA, an employer cannot “continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.”518 The Ninth Circuit, while agreeing that compliance with IRCA would constitute good cause, nonetheless upheld employer liability because the employer, instead of immediately dismissing the plaintiff, could have granted his request to go on temporary, unpaid leave for a “reasonable period” in order to restore his work authorization.519 Further obstacles to employer reliance on immigration laws as a defense arose during 2014, when the California Supreme Court decided Salas v. Sierra Chemical Co.520 The plaintiff had sued the defendant for failing to accommodate his disability and for refusing to rehire him in retaliation for filing a workers’ compensation claim. The defendant, during the lawsuit, learned that the plaintiff had obtained his job by using a false social security number and that he actually could not work in the United States.521 The Court of Appeal held that an undocumented worker who fraudulently claims legal work status cannot recover back pay for a wrongful termination or for a wrongful failure to hire because the employer could assert the defenses of after-acquired evidence and unclean hands.522 But the Supreme Court in Salas disagreed, finding that in practice this approach “would eviscerate the public policies embodied in the FEHA by allowing an employer to engage in invidious employment discrimination with total impunity.”523 Instead, the Supreme Court concluded that the employee was still entitled to protection against disability discrimination under the FEHA.524 Salas acknowledged that it is a federal crime to use false identification documents to conceal one’s true citizenship or resident alien status, but relied on a California statute providing that applicants and employees are entitled to all “protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, … regardless of immigration status.”525 Salas therefore held that a worker who cannot legally work in the United States can still sue under the FEHA, with the equitable defenses of after-acquired evidence and unclean hands being effective only for the purpose of limiting the remedies and the amount of recoverable damages.526 5.17.2 General protection for unauthorized workers The California Legislature has increased protections for employees that may face suspicion as to their immigration status. For example, legislation makes it unlawful to discriminate or retaliate against anyone who lawfully updates documents relating to work authorization, such as name changes or social security numbers.527 Additionally, a California employer cannot report or threaten to report to the government the suspected citizenship or immigration status of an employee, former employee, or prospective employee because that person has exercised a right under the Labor Code or other laws.528 Except as federal law requires, California employers also must not re-verify the employment eligibility of any employee.529
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