FEHA: California Supreme Court OKs claims by unauthorized aliens but limits remedies

Whether you’re new to HR or an HR Director, many HR professionals would agree that is has become a unique challenge to address the ever-changing federal and California laws and regulations. You’ll benefit from reading a recent California Supreme Court ruling BLR brings us.

To the dismay of employers, the California Supreme Court has ruled that employees who aren’t authorized to work in the United States, or “unauthorized aliens,” may nonetheless sue their employers for violations of the state Fair Employment and Housing Act (FEHA)—even if they used false documents to obtain their jobs. The court did, however, limit the remedies they can recover under the law.

Unauthorized worker files FEHA action

Vicente Salas began working for Sierra Chemical in April 2003. Sierra manufactures, packages, and distributes chemicals for treating water, including water in swimming pools. Consumer demand for its products increases in the summer and drops off in fall and winter, leading to seasonal layoffs of workers.

Salas was laid off in October 2003 because of such a seasonal reduction of workers. He was later recalled and laid off on several occasions.

In 2006, Salas hurt his back while working. Sierra accommodated his return to work with temporary modified work. He injured his back again later that year and subsequently filed for workers’ compensation. Salas performed modified work until he was laid off in December 2006 during the seasonal reduction.

In May 2007, Sierra contacted Salas about returning. He was instructed to bring a doctor’s note releasing him to full duty. Salas hadn’t yet been released and told his supervisor he had an appointment in June to obtain the release. The supervisor agreed to hold the job open for him but never heard from Salas again.

Salas sued Sierra in August 2007 for disability discrimination and retaliation (for filing the workers’ comp claim) under FEHA, seeking lost wages, emotional distress damages, punitive damages, and attorneys’ fees. The trial court dismissed the case before trial, and the Court of Appeals affirmed.

IRCA doesn’t trump California laws

Under the U.S. Constitution, federal law can preempt or supersede state law. The federal Immigration Reform and Control Act (IRCA) requires employers to verify the identity and work eligibility of new employees; if an employer discovers a worker’s unauthorized immigration status, termination is required.

The state Supreme Court in this case considered whether IRCA preempts application of FEHA’s antidiscrimination provisions to unauthorized aliens or California’s S.B. 1818, which specifically grants all state-provided protections, rights, and remedies (except reinstatement) to all workers regardless of immigration status.

It determined that federal immigration law preempts neither law—except to the extent that S.B. 1818 authorizes lost wages awards for any period after the employer’s discovery of an employee’s ineligibility work in the United States.

That means an employee who wasn’t authorized to work and didn’t do any work for the employer after he or she was terminated could nonetheless recover lost wages for the period running from termination to discovery of the worker’s ineligibility—compensation for work the employee wasn’t even authorized to perform.

The court dismissed the notion that allowing unauthorized workers who used false documents to secure employment to obtain state remedies for violations of California laws provides an incentive for federal immigration law violations. The practical effect of such an incentive is minimal, the court said, because most unauthorized workers aren’t familiar with the remedies available for unlawful termination and job seekers rarely contemplate being unlawfully fired.

Furthermore, the court explained, cutting these workers off from the remedies for unlawful discharge would “effectively immunize” employers that discriminate against their unauthorized workers on grounds such as disability or race, retaliate against workers who seek workers’ compensation benefits, or fail to pay the legally required wages.

The state Supreme Court said this would actually frustrate, rather than advance, the policies underlying federal immigration law by encouraging employers to hire unauthorized workers because of their lower employment costs. Salas v. Sierra Chemical Co., Calif. Supreme Court No. S196568, (2014)

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