California farm worker

California’s undocumented workers make up nearly 9.4% of our workforce. They are the backbone of many California industries, including agriculture, construction, and hospitality. They are also among our most exploited workers, as some take advantage of their financial vulnerabilities, cultural and geographic isolation, and fear of deportation. As the powerful and poignant PBS documentary Rape in the Fields explored, immigrant women face shockingly high levels of sexual harassment, sexual assault, and rape at work. Undocumented workers are also subjected to rampant violations of wage and hour laws, including not being paid the minimum wage, not being paid overtime, and not being given proper meal and rest breaks. The median earnings of undocumented workers are about $20,000 per year, as compared to $50,000 per year for U.S.-born workers.

However, California laws and court cases make clear that undocumented workers deserve protections. Our workplace protection and wage and hour laws apply to everyone, regardless of their status. In addition, our laws have sought to address the reason that many undocuments employees are afraid to come forward: a fear that their employer will get them deported. Employers are expressly prohibited from reporting or threatening to report undocumented workers or their relatives to authorities in retaliation for their asserting their rights under these laws. Employers who retaliate in such a way can lose their business licenses; lawyers making such reports can be disbarred.

Two new developments are worth discussing.

AB 1660 Protects Undocumented Workers with AB-60 Driver’s Licenses

AB 1660, effective January 1, 2015, amended the California Fair Employment & Housing Act’s 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 refers to California AB-60 driver’s licenses, which are available to people who are unable to submit satisfactory proof of legal presence in the United States but meet other requirements. This law reflects the legislature’s intentions to protect undocumented workers.

The California Supreme Court Confirms that Undocumented Workers Have Rights

AB 1660 follows on the heels of the California Supreme Court case, Salas v. Sierra Chem. Co., 59 Cal.4th 407 (2014). Salas is a wonderful opinion that addresses the rights and remedies of undocumented employees.

Vicente Salas worked on the production line for Sierra Chemical Company. He was a seasonal worker. In 2006, Salas hurt his back at work and came back with restrictions. Sierra accommodated him, but then laid him off as part of its seasonal layoffs at the end of the year. It called him back again in the following spring on the condition that he be fully recovered. He still had restrictions, so Sierra did not take him back.

Salas sued for disability discrimination and other violations under the California Fair Employment and Housing Act (FEHA), which protects workers from discrimination, harassment, and retaliation.

In litigation, Sierra learned that Salas had used another person’s social security number. The company then moved for summary judgment. It argued the Salas’s 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. “Unclean hands” is a defense that the plaintiff should not recover anything because he acted unethically, wrongfully, or contributed to the harm. “After-acquired evidence” is a defense that the employee should not recover anything because the employer learned facts after the termination which would have led it to fire the employee anyway, unrelated to the lawsuit. Sierra’s argument was that Salas was not qualified to work in the US and that it would never have hired him or called him back to work if it knew.

Salas, in turn, argued that his immigration status was irrelevant to liability under FEHA. He pointed to Senate Bill No. 1818, which extends state law employee protections and remedies to all workers “regardless of immigration status.”

The trial court agreed with Sierra’s arguments and granted summary judgment, dismissing the case. The court of appeal affirmed, and the California Supreme Court granted review.

In a victory for Salas, the California Supreme Court held that:

  1. Senate Bill No. 1818 is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer discovers than an employee is not eligible to work in the United States; and
  2. The doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker’s claims under FEHA. Instead, they can affect the damages available.

In reaching its conclusion, the court explained that it was balancing the equities. If after-acquired evidence were allowed as a complete defense, it “would eviscerate the public policies embodied in the FEHA by allowing an employer to engage in invidious employment discrimination with total impunity.” Essentially, employers would get a free pass to discriminate against, abuse, and exploit undocumented workers.

On the other hand, remedies such as reinstatement, promotion, and pay for periods after the employer learned of such information would be “inequitable and pointless.”

In an interesting footnote, the Court pointed out that this analysis applies only to employers who discover an employee’s status after the employee has been discharged or not rehired. So if an employer knowingly hired or continued to employ an undocumented worker, arguably federal law would not preempt lost wage remedies at all.


All workers in California are covered by our anti-discrimination, workplace protection, and wage and hour laws — regardless of legal status. If they have been subjected to unlawful conduct and exploitation, they have legal recourse and protections from retaliation for stepping forward.

California Makes Clear: Undocumented Workers Deserve Protection was last modified: February 8th, 2017 by Ramit Mizrahi
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