All workers in California, irrespective of their work authorization status in the United States, should enjoy the important protections of this state’s employment laws.  Fortunately, the California Supreme Court recently agreed with this principle.  In Salas v. Sierra Chemical Company, the California Supreme Court held that employees without work authorization may still bring suit in California for unlawful employment practices, such as retaliation or wrongful termination, and in most cases seek lost wages. 

Salas represents an all-too-common situation for employees without work authorization who work in difficult conditions.  The plaintiff in this case, Vincente Salas, began work as a production line worker for Sierra Chemical Company (Sierra) in 2003.  The work was seasonal and, therefore, each fall Sierra laid off Salas and each spring rehired Salas for the busy summer months.  At the time of rehire each year, Salas provided Sierra with a Social Security number and a green card.  In 2006, Salas injured his back at work and filed a workers’ compensation claim.  When the rehiring season came around in 2007, Sierra failed to rehire Salas, who had not yet fully recovered from his injuries.

Salas filed a lawsuit against Sierra, alleging that Sierra (1) failed to accommodate Salas’ physical disability and (2) fired him in retaliation for him for filing a workers’ compensation claim.  Before trial, Sierra learned that Salas had fraudulently provided employment authorization documents.  Based on this discovery, Sierra argued that Salas was prohibited from seeking back wages because he had not been authorized to work during the time for which he sought wages.  While the California Court of Appeal ruled in Sierra’s favor, the California Supreme Court reversed.

The Court held that federal immigration law, which requires an employer to terminate an employee upon learning that the employee is not authorized to work, does not generally bar an employee’s recovery under the California Fair Employment and Housing Act (FEHA).  The Court examined California Government Code section 7285, which was created by Senate Bill No. 1818.  This Section provides that state law rights and remedies apply to all employees “regardless of immigration status” and that “a person’s immigration status is irrelevant to the issue of liability” in employment.  Therefore, the issue was whether federal immigration law preempts—or takes precedence over—this state law protecting all workers.  The Court reasoned that federal immigration law does not prohibit an employer from paying, or an employee from receiving, wages where the employer does not realize that the employee is unauthorized to work.  Therefore, the Court held that federal immigration law does not prohibit wage recovery for the entire period up until an employer discovers that an employee is not authorized to work.

Despite this encouraging ruling, the Court carved out a narrow exception to an employee’s right to seek owed wages.  Namely, federal immigration law prohibits an employer from continuing to employ a worker once the employer knows that the employee is not authorized to work.  Therefore, to the extent that California state law allows an employee to recover lost wages for the period after the employer learns of the employee’s lack of work authorization, the federal law takes precedence and bars the employee from recovery.  In other words, Salas is only able to recover lost wages up until the time that Sierra learned that he did not have work authorization.

Salas v. Sierra Chemical Company is an important case for employees and their advocates.  It confirms that an employee without work authorization may not be subjected to unlawful workplace treatment, such as discrimination, harassment or retaliation, without the same rights and remedies available to all California employees.  Employees without work authorization are already vulnerable at the hands of employers trying to avoid wage laws and workplace safety.  As the Court rightly noted, taking away the rights of these employees to sue for retaliation or discrimination would run counter to both the intent of federal immigration law to discourage employment of unauthorized employees and the intent of California law to protect all workers from unlawful workplace conduct.

1300 Clay Street, Suite 600 ~ Oakland, CA 94612 ~ (415) 230-2860 ~ © Kosinski and Thiagaraj, LLP 2022

View our Canadian website

This website contains general information that is intended, but not guaranteed, to be correct.
This website is not intended to be a source of legal advice and visiting this website does not create an attorney-client relationship.