Can I Sue My Employer Even If I Am Undocumented?

Written by Galen T. Shimoda and Jennet Zapata

In California, the undocumented workforce is estimated to be approximately three million workers, while in the entire country, it is estimated there are approximately 12 million.  Most employers are likely to have employee or to be currently employer an undocumented worker.  Employers have the obligation to verify whether their employees are authorized to work in the U.S.  Even if they do so, some employers still employ undocumented workers because employees provide false social security numbers or a social security number belonging to someone else.  Employers sometimes willfully hire undocumented workers or they turn a blind eye when they receive some notice that some of their employees may be undocumented.  Ultimately, when an employee sues its employer for discrimination or to recover wages, such employee’s immigration becomes very relevant.  Case law has established whether such employee can recover any wages already earned or whether they may be denied any recovery, even if they have been discriminated against in violation of California’s laws.  Our federal immigration laws play a big role in this determination.

In 1986, Congress enacted the Immigration Reform and Control Act, often known as “IRCA” for short.  IRCA makes it unlawful for an employer to knowingly hire a person who is not authorized to work in the United States.  The Act also prohibits an undocumented person from working within the U.S. or using fraudulent documents to obtain employment.  These immigration laws have become more and more relevant in recent years.

In 2002, the U.S. Supreme Court found that undocumented workers cannot be awarded lost wages when if they sue their employer based on discrimination in the workplace, if they were never authorized to work in the U.S.  Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 140. (“Hoffman”).  The court in Hoffman reasoned that based on IRCA the employee did not have a right to gain employment and thus could not recover wages for a job position held unlawfully.  However, undocumented workers can still file a suit, but the relief recovered cannot include back pay.

Very recently, the California Court of Appeal also held that an undocumented worker who sues for failure to be hired because of his physical disability cannot recover back pay.  Salas v. Sierra Chemicals, 198 Cal.App.4th 29(2011).  The court considered whether California legislation subsequent to the Hoffman decision prevented this same result.  California legislation do favor undocumented workers by stating that “all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, [were] available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this case.” Lab. Code § 1171.5; Civ. Code § 3339; Gov. Code § 7285; Health and Saf. Code § 24000. (emphasis added).

The Salas plaintiff argued that Hoffman did not apply in his case because the new statutes were intended to limit the potential effects of the Hoffman ruling.  The court disagreed.  The court found that the enactment of these statutes did not enlarge the rights of these workers, and instead declared that these provisions were reaffirming existing law.  The existing law at the time prevented undocumented workers from maintaining a claim for wrongful termination or failure to hire.  Thus, an employee who misrepresented a job qualification imposed by the federal government could not maintain a claim for wrongful termination or failure to hire.

However, undocumented workers may bring a wide variety of claims against their employers so long as these are not tied to the wrongful discharge or failure to hire. For instance, sexual harassment claims are not barred because a plaintiff does not need to resign or be discharged to have a cause of action for sexual harassment. A victim of sexual harassment is still entitled to the protections available under employment law.

Furthermore, when it comes to claims for wages earned and not paid, an undocumented worker can still recover wages for work actually performed.  Undocumented workers may recover overtime and prevailing wages that were already earned.  See e.g., Reyes v. Van Elk, Ltd. (2007)148 Cal. App. 4th 604; Flores v. Albertsons, Inc., 2002 WL 1163623 (C.D. Cal. 2002).  Courts have reasoned that claims for wages for work already performed does not conflict with federal immigration policy. Some courts have held that the IRCA does not seem to limit undocumented workers from recovering unpaid wages under federal labor law, such as the Fair Labor Standards Act. 

Consequently, hiring undocumented workers do not shield employers from civil liability brought by their undocumented employees. If you have particular questions regarding this topic, contact our office.

The Shimoda Law Corp. legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

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