Legal Protections for Undocumented Workers in California – Part 1: Undocumented Workers Are Covered by California’s Discrimination and Wage and Hour Laws
California has a large population of undocumented workers. Estimates suggest that between two and three million people in the state’s workforce of roughly 19 million lack formal immigration status. These workers contribute across many sectors of the economy, including agriculture, construction, hospitality, and service industries. At the same time, they often face difficult working conditions and are particularly vulnerable to workplace abuses.
California law contains extensive protections for workers. These laws allow employees to seek relief in court if they experience unlawful harassment, discrimination, or retaliation for engaging in protected activities. They also allow workers to pursue recovery of wages that they have earned but were not paid.
This article addresses an important question: whether undocumented workers are protected by California’s employment discrimination and wage and hour laws. The answer matters. If undocumented workers were excluded from these protections, employers could be encouraged to hire them and disregard workplace laws without meaningful consequences.
A second article will address a related issue that frequently arises in litigation—whether employers can use the discovery process to determine a worker’s immigration status. If immigration status could routinely be explored during litigation, many workers might avoid bringing claims because of the potential risks involved.
Federal Law and the Hoffman Decision
Federal immigration law, including the Immigration Reform and Control Act of 1986 (IRCA), makes it unlawful for employers to knowingly hire or continue employing individuals who are not authorized to work in the United States. (8 U.S.C. § 1324a(a)(1)–(2).) The law also prohibits employees from using fraudulent documents to establish employment eligibility.
In Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, the United States Supreme Court examined how IRCA interacts with federal labor law. The case involved a worker who had been laid off after participating in a union organizing effort. During the proceedings, the worker acknowledged that he had used a false birth certificate to obtain employment and that he was not authorized to work in the United States.
The National Labor Relations Board (NLRB) had awarded the worker backpay. In this context, backpay referred to wages the worker would have earned from the time of termination until the employer discovered his immigration status.
In a 5–4 decision written by Chief Justice William Rehnquist, the Court concluded that federal immigration policy limited the NLRB’s authority to award backpay under those circumstances. The Court reasoned that granting backpay for work that could not lawfully have been performed would conflict with IRCA’s prohibition on unauthorized employment.
As a result, the Court held that the NLRB could not award backpay to an undocumented worker for wages associated with work that was not performed after termination when the employment itself had been obtained through the use of false documents.
The California Legislature’s Response to Hoffman
The California Legislature responded to the Hoffman decision in 2002 by passing Senate Bill 1818. That legislation created Labor Code section 1171.5 and related provisions. The statute provides that, with the exception of remedies prohibited by federal law, all protections, rights, and remedies available under California labor and employment law apply to individuals regardless of immigration status.
The statute further states that, when enforcing state labor and employment laws, a person’s immigration status is generally irrelevant to the issue of liability. It also restricts inquiry into immigration status during legal proceedings unless the party seeking that information can demonstrate by clear and convincing evidence that the inquiry is necessary to comply with federal immigration law.
This approach built on earlier California decisions. For example, in Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, the California Court of Appeal held that an undocumented employee could pursue claims for sexual harassment because she was entitled to the protections of employment law while she was working.
Salas v. Sierra Chemical Co.: The California Supreme Court Addresses the Issue
The California Supreme Court examined whether SB 1818 conflicted with federal immigration law in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407. In that case, the plaintiff alleged that his employer failed to accommodate his disability and retaliated against him for filing a workers’ compensation claim. During the litigation, the employer discovered that the worker had used another person’s Social Security number when applying for the job.
The court considered two primary issues: whether federal law preempted SB 1818, and whether the plaintiff’s use of false documentation barred his claims under the after-acquired evidence doctrine or the doctrine of unclean hands.
The court analyzed the various forms of federal preemption—express, field, conflict, and obstacle—and concluded that none prevented California from extending workplace protections to undocumented workers. The court emphasized that IRCA primarily regulates the hiring of unauthorized workers rather than the enforcement of workplace protections after employment begins.
The court also noted the practical consequences of denying these protections. If undocumented workers were excluded from state labor laws, employers who violated wage and discrimination laws could effectively avoid accountability simply because of a worker’s immigration status.
Ultimately, the court held that federal law does not prevent an undocumented worker from recovering lost wages for the period before the employer discovers the worker’s immigration status. However, federal law does limit certain remedies after that point. For example, awards of lost wages after discovery of undocumented status, as well as remedies such as reinstatement or promotion, may not be available.
The court also clarified that SB 1818’s protections apply even when a worker used false documentation to obtain employment. As earlier cases observed, if an employer hires an undocumented worker, the employer remains responsible for complying with California’s wage, hour, and workplace protection laws.
With respect to the after-acquired evidence doctrine, the court concluded that it does not completely bar claims such as wrongful termination. Instead, it may limit the types of remedies available. Similar reasoning applied to the equitable doctrine of unclean hands.
Conclusion
Under California law, undocumented workers may pursue claims for unpaid wages and other violations of employment law. They may seek compensation both for work performed but not paid and for certain lost wages following a wrongful termination, up until the point when the employer discovers the worker’s immigration status.
These rules reflect California’s policy of enforcing workplace protections for all workers while also recognizing limits imposed by federal immigration law. They help ensure that employers remain responsible for complying with wage and anti-discrimination laws, regardless of a worker’s immigration status.
