SF Bay Area Employment Attorney Blog
I am often asked whether an undocumented worker can seek from his or her employer compensation for minimum wage, overtime wage, meal and rest break violations. Under California Law, the short answer is “YES!”
“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.
“For purposes of enforcing state labor, employment, [civil rights, and employee housing 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 this inquiry is necessary in order to comply with federal immigration law.
California Civil Code §3339, Government Code §7285, Labor Code §1171.5.
What are the remedies if a present or former employee exercises such rights? I would start by bringing suit under the general anti-retaliation, whistleblower protection laws of California Labor Code §§98.6, 1102.5, and the specific anti-retaliation, whistleblower protection laws of California Labor Code §§244 and 1019.
I would also bring a common law cause of action for retaliatory discharge/demotion under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654; Turner v. Anheuser Busch, Inc. (1994) 7 Cal.4th 1238; and Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454; and Garcia v. Rockwell Int’l Corp. (1986) 187 Cal.App.3d 1556.
Also, “Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation.
“In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.” Cal. Labor Code §98.7.
WHAT ACTIONS ARE PROTECTED?
Labor Code §98.6 and 1102.5 are general employee whistleblower statutes. These statutes prohibit employers from retaliating against employees for exercising their rights under the law including complaining about what the employee reasonably believes is a violation of the law.
Labor Code §1019 specifically prohibits employers from unfair immigration-related practices against employees who exercise their rights under the law. Labor Code §1019(a) states, “It shall be unlawful for an employer or any other person or entity to engage in, or to direct another person or entity to engage in, unfair immigration-related practices against any person for the purpose of, or with the intent of, retaliating against any person for exercising any right protected under this code or by any local ordinance applicable to employees.”
REMEDIES AVAILABLE: Compensatory Damages including back and future pay and benefits, emotional distress damages, Punitive Damages, Civil Penalties, Attorney’s Fees and Costs
A tortious termination (Tameny claim) subjects the employer to, ‘liability for compensatory and punitive damages under normal tort principles.’ ” Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1101.
Under §98.6, the available remedies include “reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer” and “a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section.”
Under Cal. Labor Code §1102.5, “ In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section.”
Under Cal. Labor Code §1019(d)(1), “An employee or other person who is the subject of an unfair immigration-related practice prohibited by this section, or a representative of that employee or person, may bring a civil action for equitable relief and any damages or penalties, in accordance with this section.
“(3) An employee or other person who is the subject of an unfair immigration-document practice prohibited by this section, and who prevails in an action authorized by this section, shall recover its reasonable attorney’s fees and costs, including any expert witness costs.”
Under Labor Code §1019(d)(2), the Court may order the appropriate government agencies to suspend up to 90 days all licenses that are held by the violating party.
I would also seek punitive damages against the employer and any other person violating such statutory rights. After all, it is a crime under §1103 to violate such whistleblower rights under §1102.5.
FINAL THOUGHTS FOR MY FRIENDS OF THE BAR
Take note of Cal. Business and Professions §6103.7, which states, “It is cause for suspension, disbarment, or other discipline for any member of the State Bar to report suspected immigration status or threaten to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment, broadly interpreted.”