Immigration Status and Employment Law Claims (Salas v. Sierra Chemical Co.)

The California Supreme Court decided Salas v. Sierra Chemical Co., affirming that undocumented immigrants are still afforded the protections of California employment law. The Court held that undocumented employees are entitled to pursue FEHA claims for retaliation and discrimination against their employers. The Supreme Court reasoned that preventing undocumented employees from seeking remedies when they are discharged due to discrimination or were retaliated against for exercising a protected right, would undermine the purpose of federal immigration law by making it less expensive for employers (and thereby encouraging employers) to hire undocumented immigrants.The Court also held that an employer’s discovery that its employee was undocumented cannot provide a defense to a wrongful termination claim because permitting such a defense would seriously undermine state law protections against discrimination and retaliation.

The Court further held that employees whose employers discover their unauthorized status after firing them or failing to rehire them may not recover lost pay for the period after the discovery, because under federal law, an employer may not knowingly continue to employ an undocumented immigrant.

However, Labor Code Section 1171.5 provides in pertinent part the following:

“The Legislature finds and declares the following:

(a) 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.

(b) For purposes of enforcing state labor and employment 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 except where 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.”