Can Immigrants in California Sue for Discrimination or Wrongful Termination? What are the Risks?

The topic of immigration in America continues to spark passionate, and often vitriolic debate. But regardless of the different voices clamoring to be heard, the simple truth is that America was built by immigrants, and immigrants — whether documented or undocumented — contribute positively to the fabric of California. 

There are laws in place at both the federal and state level that protect both documented and undocumented immigrants from employment abuse. This means that immigrant workers are protected from unlawful discrimination, harassment, wrongful termination and other workplace violations.Continue reading to learn a little more about immigration and employment law.

If you are an immigrant who is working in this country, lawfully or unlawfully, you have rights. If you feel you’ve been treated unfairly by an employer, contact our office to discuss your case. 

Immigrant Employment Rights – What Does the Law Say?

While employment law is complex, and there are many things to consider when pursuing action against an employer. Generally speaking, immigrants are covered by the same workplace protections that US citizens enjoy. The California Labor Code says:

All protections, rights and remedies available under state law…are available to all individuals regardless of immigration status who have applied for employment, or who have been employed, in this state.

Labor Code §1171.5(a)

Subsection (b) further states:

For purposes of enforcing state labor, employment, civil rights, consumer protection, and housing 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 unless 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.

Labor Code §1171.5(b)

Beyond that, your former employer is prohibited from reporting or threatening to report your immigration status in retaliation for filing a lawsuit. CA Labor Code § 244(b)

California’s Fair Employment and Housing Act (FEHA), which protects all workers within the state, makes it unlawful for employers to discriminate against workers for any number of reasons including color, race, ancestry, and, most importantly for purposes of this article, national origin.

What Kinds of Protections Does the Law Provide Immigrants?

Thanks to laws like those mentioned in the previous section, immigrants are afforded many of the same rights as non-immigrant employees.  These protections cover:

• Equal employment opportunities – non-discrimination
• Disability rights
• Harassment prevention
• Freedom from other forms of discrimination
• Rest and meal breaks
• Overtime, PTO, minimum wage, and other wage & hour standards

If you’re an immigrant, whether in the country on a work visa or undocumented, and you believe you’ve experienced harassment, discrimination, or some other workplace violation, consider contacting an experienced employment lawyer to discuss the facts of your case.

But Wont My Employer Retaliate?

It is unlawful under California and federal law for an employer to retaliate against an employee because that employee reported a violation of workplace law, or refused to do something they thought was illegal. An employer who retaliates in this way, even against an immigrant employee, can potentially be liable for damages.

Documented Immigrants

Workers who are in the country on a work visa can be subject to retaliation. An employer who is upset at an immigrant worker for complaining about wage, safety, or meal break violations might threaten to cancel that worker’s visa and have them deported.  

Understandably the fear of losing one’s visa is often enough to keep an immigrant from speaking up for his or her rights (or the rights of others). If you are here on a work visa and your employer has retaliated against you unlawfully, contact our office to discuss the facts of your case.

Undocumented Immigrants

An undocumented worker has perhaps the most to fear when it comes to employer retaliation. According to the Economy Policy Institute, instances of immigration related retaliation appears to be on the rise. Workers in California filed 94 immigration related retaliation claims in 2017. This represented a sharp increase from 2016 in which there were only 20 claims. In 2015, there were only seven such claims. 

An undocumented immigrant might understandably be hesitant to contact an employment attorney for fear of retaliation by their employer. However, it’s important to remember that even undocumented immigrants have rights in the workplace and an after learning the facts of your case, a good attorney will be able to discuss the potential risks of pursuing legal action against your employer.

If your employer is threatening to contact ICE or another law enforcement agency because you reported a workplace violation of law, don’t hesitate to contact our office. Calls placed to our office are kept in the strictest of confidence.

Immigrant Employees Can Sue Their Employers

In addition to those laws, according to CA Labor Code § 1019, Immigrants can sue their employer for any unfair immigration related practice including:

• Requesting more or different documents that are required by federal immigration laws,
• Using the federal E-Verify system to check the employment authorization of a person at a time or in a manner not required under federal law,
• Refusing to accept such documents when they reasonably appear on their face to be genuine,
• Filing or threatening to file a false police report or a false report or complaint with any State or federal agency like the Immigration and Customs Enforcement Agency (“ICE”), or
• Contacting or threatening to contact immigration authorities.

What Can Immigrants Recover in an Employment Lawsuit?

Each case is different, and it’s impossible to answer this question with a specific dollar amount. That said, immigrant employees are entitled to recover the same damages as workers born or naturalized in the US. This includes the following:

Back Pay: Say an immigrant worker was paid less than the minimum wage for the time he or she was employed with the company.  The minimum wage in California is currently $12 hourly. Suppose a worker was only paid $9 hourly over a period of three years. If he or she successfully presses a claim, that worker could be eligible for back pay. If that employee regularly worked overtime, the final figure will increase.

Lost Wages: An employee who is found to have been wrongfully terminated might be entitled to lost wages. This is the money he or she would have earned had the termination not happened. Imagine an immigrant employee was making $45,000 annually, was wrongfully terminated as the result of retaliation, and unable to find work for three years. An immigrant who successfully pursues a case could be entitled to the normal salary over a period of three years. This would come out to $135,000.

Punitive Damages: These are the damages that often come in million-dollar amounts. They are designed to punish companies that act with malice, oppression or fraud. While proving these elements is difficult, it’s not unusual for a company that abuses immigrant labor to engage in behavior worthy of punitive damages.

Contact an Attorney to Discuss Your Case

Any settlement, no matter how big, is little comfort to a worker who faces deportation. That’s why it’s important to discuss with an attorney the risks and rewards an immigrant faces when deciding to sue an employer.

If you are an immigrant who believes you have been mistreated by an employer, contact our office to discuss your case. Rest assured, your information will be kept confidential. You have little to lose by talking to our firm.

If you have questions or concerns, contact Branigan Robertson’s office. Find out how we can help.