Low-wage workers—regardless of immigration status—shoulder more than their fair share of workplace violations, including unpaid wages, unsafe working conditions, and discrimination and harassment. Immigrant low-wage workers are particularly vulnerable—working under constant fear that if they exercise basic workplace rights, they will suffer retaliation that could result in the separation of their families; loss of homes and property; or return to violence or extreme poverty in their home countries.
This fear of retaliation is based in fact. We as advocates have seen it happen time and time again—and it overwhelmingly leads to workers staying silent, leaving employers without even a slap on the wrist when they break the law.
Scofflaw employers do not and will not stop violating the law if they are not held accountable for their violations to all workers. Any other type of piecemeal enforcement, or lack of enforcement, encourages employers to hire vulnerable undocumented workers, disregard labor laws as basic as the minimum wage, and then fire them when they complain – all to the economic disadvantage of employers who do follow the law.
Earlier this summer, the California Supreme Court in the Salas v. Sierra Chemical Company case agreed, deciding that companies that hire undocumented workers (knowingly or not) do not get a free pass to discriminate against them.
In that case, Mr. Salas sued his former employer, Sierra Chemical Company, for failing to bring him back to work after he injured himself and claimed workers’ compensation benefits. Mr. Salas alleged the company retaliated against him for filing his claim and discriminated against him because of his injury. But a jury never got the chance to decide whether he was right. The company claimed that because Mr. Salas was not authorized to work in the U.S. in the first place, the company shouldn’t be liable for failing to hire him back. A lower court agreed and dismissed the case (giving the company a free pass to discriminate in the bargain).
The California Supreme Court said not so fast. On the one hand, the law says that people without work authorization shouldn’t be working. But on the other hand, the law says that all workers should be protected from discrimination.
In a careful decision, the California Supreme court balanced these two concerns. It allowed Mr. Salas to take his case to a jury, finding that a company can be liable for discrimination even against undocumented employees. At the same time, the court held that undocumented employees cannot seek a court to be hired back by the company that has discriminated against them.
This decision demonstrates an understanding of the reality of the California workplace, which is increasingly made up of workers of all immigration statuses, including green card holders and naturalized U.S. citizens. It also includes 1.85 million undocumented workers, who constitute nearly 10% of the total workforce.
Against this backdrop, the Supreme Court confirmed that employers cannot violate the law—by discriminating or otherwise—and then later be immunized from liability for those violations. The court recognized that leaving undocumented workers without the protection of the law would actually give employers a strong incentive to “look the other way” when hiring and then turn around and use their immigration status to ultimately exploit them. That would be bad news for employers who actually honor their obligations to treat workers fairly and legally when it comes to hiring, pay, and non-discrimination in the workforce.
Mr. Salas will now have the chance to take his case to a jury, who will decide whether he wins or loses. But the Salas decision is a solid win for all law-abiding Californians – employees and employers alike.
This article originally appeared in CELA Voice on October 2, 2014. Reprinted with permission. http://celavoice.org/
About the Author: Megan Beaman is a community-based attorney who roots her work in the notion that all people deserve access to justice, and who understands the larger struggles for immigrant and worker justice in California and nationwide. Beaman’s practice is founded on her years of advocacy and activism in working class and immigrant communities, and tends to reflect the predominate needs of those communities, including many cases of discrimination, harassment, unpaid wages, immigration, substandard housing, and other civil rights violations. The client communities Beaman most often represents are overwhelmingly Latino and Spanish-speaking. Beaman also works and volunteers in a number of other community capacities, including as a coordinator for the Eastern Coachella Valley Neighborhoods Action Team.
About the Author: Kevin Kish is the Director of the Employment Rights Project at Bet Tzedek Legal Services in Los Angeles. He leads Bet Tzedek’s employment litigation, policy and outreach initiatives, focusing on combating illegal retaliation against low-wage workers and litigating cases involving human trafficking for forced labor.