[COLUMN] Employers cannot use immigration status to avoid following employment laws

Q: I WORKED as a caregiver in a nursing home. I complained to my manager that the owner’s husband was sexually harassing me, but she told me I was overreacting and told me I should be thankful I have a job. When I complained again after the owner’s husband touched me inappropriately, the manager called me a troublemaker and fired me.

I think what they did was wrong, and I want justice. But I’m afraid to take them to court because I’m still in the process of fixing my immigration papers. If I sue them for unlawfully firing me, can they use my immigration status against me in court?

A: As you suspected, you may indeed have a claim for unlawful retaliation under the California Fair Employment and Housing Act (“FEHA”). FEHA protects California employees against retaliation for an employee’s reasonable and good faith act of opposing a practice forbidden by law, such as sexual harassment.

You may also have claims for the hostile work environment created by the sexual harassment you suffered, as well as your employer’s failure to prevent the sexual harassment. These are types of discrimination based on gender that are unlawful under FEHA.

As to immigration status, California has a strong public policy that the protections of employment laws extend to all employees, whether documented or not. Under California Labor Code § 1171.5(a), where an employee alleges that her employer violated California employment laws, the employer is prohibited from inquiring into the employee’s immigration status without showing by clear and convincing evidence that the information is necessary to comply with federal immigration laws.

A recent case provides an example of the protections. In a recent case, an employee of a landscaping company, Jose Manuel, alleged that he was wrongfully terminated after he had hurt his back on the job. The employer sought information on his immigration status, arguing that this was relevant to their defense that Mr. Manuel had actually abandoned his job because he was afraid the federal government was questioning his authorization to work in the United States.

The Court of Appeal ruled that inquiries into Mr. Manuel’s immigration status was improper. The appellate court explained that not allowing unauthorized workers to obtain state remedies for unlawful discharge, like lost wages, “would effectively immunize employers that, in violation of fundamental state policy, discriminate against their workers on grounds such as disability or race, retaliate against workers who seek compensation for disabling workplace injuries, or fail to pay the wages that state law requires.”

The Labor Code prevents California employers from using immigration as a shield to avoid responsibility for violating California’s employment laws. Undocumented employees have employment rights, and there are ways to enforce their valid claims under wage and discrimination laws.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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