California Supreme Court Affirms Right of Limited Backpay for Undocumented Workers

July 7, 2014 by Susan Garea

Undocumented workers and immigration reform have been a hot political topic of late. As an employment law firm actively engaged in advocacy for individuals and unions we at Beeson, Tayer and Bodine (BT&B) were encouraged by the California Supreme Court’s recent decision in Salas v. Sierra Chemical Company.  The Court’s ruling clears away some of the hurdles that undocumented workers face in enforcing rights guaranteed to all employees under California’s Fair Employment and Housing Act (FEHA). The California Supreme Court ruled that an undocumented employee can recover lost pay damages under California’s FEHA for time worked prior to an employer’s discovery of the ineligibility to work.

California Senate Bill No. 1818, passed in 2002, explicitly made all state-provided worker protections, rights and remedies (except reinstatement prohibited by federal law) “available to all individuals regardless of immigration status.”

In ruling that FEHA’s back pay remedy was available to undocumented workers, the Court held that FEHA is not preempted by federal immigration law. The Court concluded that Congress did not intend to preempt a state’s historic police powers to regulate employment.

The Court did find, however, that any award for back pay under FEHA for time worked after an employer’s discovery of ineligibility would directly conflict with federal immigration law. Federal immigration law prohibits an employer from continuing to employ an employee who is unauthorized to work. Therefore, the Court concluded, a state law remedy that compensates an employee for loss of employment during the post-discovery period is unenforceable.

In contrast, the Court noted, federal immigration law does not prohibit an employer from paying or an employee from receiving wages owed for work performed. Recovery of lost wages for the pre-discovery period does not produce a conflict.

The decision means that an employer’s discovery, after an employee’s discriminatory discharge, that the employee is undocumented does not eliminate the employee’s claim, but instead only cuts off the back pay remedy.

 Beeson, Tayer & Bodine submitted an amicus brief in support of the Plaintiff in this case and we are pleased to see a decision that ensures application of important state protections to undocumented workers. This decision is an important tool for limiting employer exploitation in low-wage industries and holding employers accountable for state-law violations even when perpetrated against employees who are ineligible to work in the United States under federal law. BT&B has offices in Sacramento and Oakland.  We continue to advocate for legal protection of employees’ job rights and encourage readers to keep up to date with labor and employment law rulings through our newsletter and blog. You can also follow us on Twitter @btblegal.

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