Visa Expiration Does Not Automatically Trump Just-Cause Protection

June 13, 2007 by Beeson Tayer & Bodine

California laws apply to all citizens regardless of their immigration status. Federal law, however, prohibits employers from knowingly employing an illegal alien. In Incalza v. Fendi, 479 F.3d 1005, the Ninth Circuit looked at the potential conflict between state and federal law as applied to California wrongful discharge law.

Incalza was a native Italian who had worked for Fendi in the U.S. for over 10 years. During that time, he excelled in his job, and was assured that he would only be fired for good cause. Under California law, these facts gave Incalza grounds to submit that he had just-cause protection under California’s wrongful discharge law.

When Incalza’s visa expired Fendi falsely told Incalza that his visa problems could not be remedied, and then fired him. Incalza requested a leave of absence to allow him to straighten out the visa problem. Fendi denied the request. Incalza then filed suit claiming that his termination was without good cause and thus in violation of state law. In response, Fendi argued that the federal Immigration Reform and Control Act (IRCA) mandated that Incalza be fired, that IRCA preempts state law, and that Incalza therefore had no right to sue.

The Ninth Circuit Court of Appeals disagreed, noting that federal law preempts state law only when there is a direct conflict. In this case, the Court observed, Fendi could have complied with IRCA without terminating Incalza, for example by applying for a new visa for Incalza and/or giving Incalza a short leave of absence while the visa problem was straightened out. While state law does not compel an employer to employ an illegal alien, the Court ruled an employer must pursue all reasonable options, including a leave of absence, to address the IRCA issue before terminating an employee who has just-cause protection; terminating an employee without doing so is not good cause.

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