Federal Immigration Protections

Under the federal Immigration Reform and Control Act (IRCA), if you employ four or more people, you cannot discriminate against any individual who is an authorized employee on the basis of national origin or citizenship status.1

You cannot refuse to hire a legal employee on the basis of the prospective employee’s physical, cultural or linguistic characteristics or national origin because of a presumed higher risk that immigration-related problems may occur. Employees protected under the amnesty provisions of the IRCA as temporary residents also enjoy protection from employment discrimination.2

These anti-discrimination provisions apply to all employers with four or more employees. For more information on verifying eligibility for employment, see I-9 Form: Verifying Eligibility.

The full force and effect of Title VII of the federal Civil Rights Act covers hiring, employing and terminating all employees covered by the IRCA. Specifically, Title VII bans all employment practices that subject individuals to different or unequal treatment because of their national origin. For more information, see Title VII of the Civil Rights Act of 1964 (Title VII).

Harassment on the basis of national origin is also prohibited. For more information on discrimination related to national origin, see National Origin.

Retaliation is also prohibited by the anti-discrimination provisions found in the Immigration and Nationality Act. You cannot intimidate, threaten, coerce or otherwise retaliate against an individual because:

• The individual filed an immigration-related employment discrimination charge or complaint.
• The individual testified or participated in any immigration-related employment discrimination investigation, proceeding or hearing.
• The individual has otherwise asserted his or her rights under the anti-discrimination provisions in the Immigration and Nationality Act (INA).

Employers who violate INA laws prohibiting unfair immigration-related employment practices may be liable for monetary fines or the workers’ legal fees. Employers may also be required to hire or rehire workers, pay back wages or change internal polices to avoid further discrimination.

• Consult legal counsel whenever you have concerns about how to handle an immigration-related issue or I-9 documentation issue.

You must check all employees for identification that establishes both identity and employment eligibility to ensure that they are eligible to work in the United States. However, unfair documentary practices during the Form I-9 process (document abuse) are prohibited by the anti-discrimination protections of the INA. Procedures for assuring that all employees meet the requirements of federal immigration laws, plus other requirements for employers in this area, are contained in I-9 Form: Verifying Eligibility

Employees may choose which document(s) they wish to present from the list of acceptable documents.

Limiting the types of documents an employee can present, or imposing additional documentary burdens, can be an unfair immigration-related employment practice in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA), according to USCIS. The INA prohibits discrimination during the I-9 process and it is enforced by the U.S. Department of Justice (DOJ). For more information, see “Document Abuse” on the Completing the Form I-9 page.

For instance, in one DOJ settlement with a California staffing company, DOJ found that members of the company’s staff required non-U.S. citizens to present specific documents during the eligibility verification process to establish their work authority that the staff did not require of similarly-situated U.S. citizens.

Citizenship Requirements

It is unlawful to use citizenship as a condition of employment if doing so discriminates against individuals because of their national origin. Though the IRCA prohibits discrimination on the basis of citizenship, the Act specifically states that to prefer a citizen over a non-citizen, where both are equally qualified, is not a violation of federal law.3

However, you may not adopt a blanket policy of always preferring citizens over non-citizens.

California Immigration Protections

Under California law, all individuals who applied for employment or who were employed in the state are entitled to all protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, regardless of immigration status. This includes state labor, employment, civil rights and employee housing laws. You cannot inquire about a person’s immigration status except when necessary by clear and convincing evidence to comply with federal immigration law.4

The fact that undocumented workers are entitled to the state’s labor and employment protections was also reaffirmed by the California Supreme Court in Salas v. Sierra Chemical Co.5

California employers must comply with all wage and hour laws, including paying employees and paying them on time, even if the employee is not legally eligible to work in the United States. All California workers — whether or not they are legally authorized to work in the United States — are protected by the state Labor Code regulating wages and working conditions.

If you hire undocumented employees, you must pay them. You will be subject to fines and penalties for employing the unauthorized workers. You should not employ a person until you verify their eligibility to work by one of the methods discussed in I-9 Form: Verifying Eligibility. However, when you hire a person, you must pay them for all hours worked.

You cannot run wages through payroll without a valid Social Security number. However, payroll can run an employee’s wages and give you the calculation of how much money you should pay to the employee and the amount of required withholding. You may have to issue a check or cash through accounts payable to ensure that the person is paid and that you set aside the required withholdings.

Undocumented workers also have the right to file workplace safety and health complaints.

The California Department of Industrial Relations states that it will not question workers about their immigration status, and will:

• Process all wage claims without regard to a worker’s immigration status; and
• Hold hearings to recover unpaid wages and represent workers without regard to the worker’s immigration status.

Undocumented workers also have the right to bring claims of discrimination, harassment or other violation of employment rights or protections.6

For more information regarding verifying employment status, see I-9 Form: Verifying Eligibility.

Remember that California enacted several laws creating a “sanctuary state” and establishing protections for workers facing federal immigration enforcement while on the job. For more information, see Worksite Immigration Enforcement and Protection.

Use of False Documents

Federal immigration laws require employers to verify employees’ identity and eligibility to work. Immigration laws also impose civil and criminal sanctions against employers and employees who knowingly hire, refer, recruit or continue to employ individuals who are not authorized to work in the United States. At the same time, federal law prohibits employers from rejecting documents that reasonably appear to be genuine and relate to the employee presenting them.

• Employers may question what to do if they find out that someone they hired submitted fraudulent documents for employment and is actually an unauthorized worker. California law may still entitle the unauthorized worker to many California labor and employment protections.

In Salas v. Sierra Chemical Co., the California Supreme Court allowed an unauthorized worker who had been using a false Social Security number to proceed with his disability discrimination and retaliation lawsuit because state law provides job protections “regardless of immigration status.” The court allowed back pay damages up until the employer discovered the employee was unauthorized to work.7

Although federal law prohibits using false documents to get a job, it “does not prohibit an employer from paying, or an employee from receiving, wages earned during employment wrongfully obtained by false documents, so long as the employer remains unaware of the employee’s unauthorized status,” the court stated in its ruling.

• If an employer complies with the verification requirements when hiring an individual but later discovers the employee is an unauthorized worker, employers are advised to discuss the situation with legal counsel. Moreover, California law prohibits employers from taking action against employees who update their personal information, including Social Security numbers. Again, consult legal counsel. For more information, see Employee Identification.

Unfair Immigration-Related Practices

Under the California Fair Employment and Housing Act (FEHA), employers are prohibited from asking about an applicant’s or employee’s immigration status, or discriminating against an applicant or employee based on immigration status, unless the employer can show by clear and convincing evidence that the employer was doing so to comply with federal immigration law.8

It is also a violation of the FEHA to use citizenship requirements that discriminate against applicants or employees on the basis of national origin — or are a pretext for discrimination — unless the requirement is pursuant to a permissible defense.9 For more information on defenses, see Defense Against a Claim of Discrimination.

Labor Code section 1019 prohibits an employer from engaging in “unfair immigration-related practices” against a worker in retaliation for exercising a legal right protected under the Labor Code or any local ordinance applicable to employees.

The intent of the law is to protect immigrant workers from being taken advantage of by employers who do not comply with the state’s wage and hour laws and laws governing working conditions.10 Protected worker activities include:11

• Filing a complaint or informing any person of an employer’s or other party’s alleged violation of the Labor Code or a local ordinance, if the complaint or disclosure is made in good faith.
• Seeking information regarding whether an employer or other party is in compliance with the Labor Code or a local ordinance.
• Informing a person of their potential rights and remedies under the Labor Code or a local ordinance.
• Assisting another in asserting their rights.

An “unfair immigration related practice” is as any of the following practices when taken for retaliatory purposes:12

• Requesting more or different documents than are required under federal immigration law, or a refusal to honor documents tendered pursuant to federal law that, on their face, reasonably appear to be genuine
• Using the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required under federal law or not authorized under any memorandum of understanding governing the use of the federal E-Verify system
• Threatening to contact or contacting immigration authorities
• Threatening to file or the filing of a false police report or a false report or complaint with any state or federal agency

For instance, an employer may not threaten to contact, or contact, immigration authorities because an employee complained that they were paid less than the minimum wage.

The law creates a rebuttable presumption that an employer who engages in an unfair immigration-related practice within 90 days of an employee exercising a protected right has engaged in retaliation.13

• The law specifically states that employer conduct undertaken at the express and specific direction or request of the federal government is not unlawful.

Employers who engage in unfair immigration-related practices will face various penalties, including an employee’s right to bring a civil action and potential suspension of certain business licenses, with the length of the suspension depending on the number of prior violations and several factors set forth in the statute. The law defines “violation” as “each incident when an unfair immigration practice was committed, without reference to the number of employees involved in the incident.”

Like federal law, it is now also unlawful under state law for employers to:

• Ask for more or different documentation than is required by the Form I-9;
• Refuse to accept documents that appear genuine on their face; or
• Engage in other types of document abuse.

Violators can be subject to a penalty of up to $10,000 per violation.14 For more information, see Document Abuse” in Completing the Form I-9.

For more information on verifying employment status, see I-9 Form: Verifying Eligibility.

Reporting or Threatening to Report Immigration Status

In addition to the protections against unfair immigration-related practices found in Labor Code section 1019, employees have additional protections from retaliation based on citizenship or immigration status.

Labor Code section 244 provides that reporting or threatening to report the suspected citizenship or immigration status of an employee, former employee, prospective employee or a member of their family because the person has exercised a right under the Labor Code, Government Code or Civil Code constitutes an unlawful “adverse action” against the individual for purposes of establishing a violation of the individual’s legal rights.15 This law is broader than just complaints about wage and hour claims. It also covers other rights, such as bringing a discrimination or harassment complaint under the Government Code.

Reports (or threats to report) to a federal, state, or local agency are covered.

“Family member” means a “spouse, parent, sibling, uncle, aunt, niece, nephew, cousin, grandparent, or grandchild related by blood, adoption, marriage or domestic partnership.”

• Supervisors and managers should be trained that using, or threatening to use, employees’ or applicants’ suspected immigration status against them can amount to unlawful conduct.

Business and Professions Code section 494.6 permits the state to suspend or revoke an employer’s business license where the employer makes a report or threat to report suspected immigration status in violation of Labor Code section 244.

Penal Code section 519 also clarifies that a person may be guilty of criminal extortion if the person threatens to report the immigration status or suspected immigration status of an individual, or their relative or family member.

Driver’s License Protections

It is unlawful for an employer to discriminate against an individual because they hold or present a driver’s license granted under section 12801.9 of the Vehicle Code. This section of the Vehicle Code allows for driver’s licenses to be issued to persons who are not in the country legally, if they are able to provide satisfactory proof of identity and California residency. These licenses allow the holders to drive but do not “establish eligibility for employment, voter registration, or public benefits.”

The California Department of Motor Vehicles (DMV) began issuing these driver’s licenses in 2015. They are sometimes referred to as “AB 60 licenses,” referencing the bill that made these licenses legal.

Discrimination on the basis of holding one of these driver’s licenses is a violation of the Fair Employment and Housing Act and constitutes national origin discrimination.16

Importantly, it is also a violation of FEHA for an employer to even require a person to present a driver’s license, unless possessing a driver’s license is:17

• Required by law; or
• Required by the employer and the employer’s requirement is otherwise permitted by law.

In fact, a policy that requires applicants or employees to hold or present a driver’s license can be considered evidence of a FEHA violation if the policy is:18

• Not uniformly applied; or
• Not consistent with legitimate business reasons (i.e., not needed to perform an essential job function).

California prohibits employers from listing a driver’s license as a preferred qualification for job candidates unless certain conditions are met. Specifically, the law prohibits employers from including a statement in a job advertisement, posting, application, or other material that an applicant must have a driver’s license, unless the employer both:

• “Reasonably excepts” driving to be one of the job functions for the position; and
• “Reasonably believes” that using an alternative form of transportation would not be comparable in travel time or cost to the employer.

• Unless driving is required for the job, there is no reason to ask a new hire or current employee to show a driver’s license. Asking for a driver’s license can be a violation of FEHA. For more information, see “California Drivers’ Licenses” in Completing the Form I-9.

Critically, actions taken by an employer that are required to comply with federal I-9 verification requirements under the Immigration and Nationality Act (INA) do not violate California law. The Vehicle Code provisions relating to this special license do not affect an employer’s rights or obligations under the federal INA. For more information, see “California Drivers’ Licenses” in Completing the Form I-9.

Any driver’s license information that is obtained by an employer:19

• Is to be treated as private and confidential;
• Is exempt from disclosure under the California Public Records Act; and
• Cannot be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

1. IRCA sec. 102