Immigration

California is quickly becoming known as a state that welcomes immigrants from all walks of life, with their contributions forming an integral part of its vibrant economy and diverse society.  It was not always the case, however.  California also has a dark history of displacing native peoples, enslaving African Americans, discriminating against Chinese and Japanese Americans, and stripping Mexicans who lived here before California became part of the United States of their rights and property. 

Today, California recognizes the importance of protecting the rights of immigrant and undocumented employees.  In this article, we will delve into the rights afforded to immigrant and undocumented employees under Sections 1019 et seq. of the California Labor Code, highlighting the key protections in place to ensure fair treatment and workplace equality.

Providing Equal Opportunities

The California Labor Code, beginning at section 1019, states employers must afford immigrant employees the same employment opportunities and benefits as any other employee, regardless of their immigration status.  This provision ensures that employees are not discriminated against based on their immigration status and that they have equal access to employment opportunities, training, promotions, and benefits.  This was important to the state legislature to ensure that unscrupulous employers did not take advantage of employees simply because of their immigration status.  Mistreatment and abuse of any employee threatens the rights of all employees in the workplace.

National Origin Discrimination

It is illegal also illegal to discriminate against a person based on their national origin. (Cal. Gov. Code, § 12940(a).)

National origin is a broader term than race, as it includes more than just an individual’s race; it also includes physical, language and culturally based traits. National origin discrimination occurs when an employer treats an employee in an adverse manner because of the employee’s actual or perceived national origin. (Cal. Code Regs., tit. 2, § 11027.1.)

California’s protections against national origin discrimination include protection against discrimination based on an employee’s accent or language proficiency.

Language discrimination occurs when a person is treated differently because of their native language or a characteristic of their speech. This is because a person’s primary language and accent is closely related to their country of origin.

Unless the employer can prove that the individual’s accent or language limitations substantially interfere with an important part of the employer’s business, meaning the employee’s ability to perform their job, an employer who discriminates against an employee with limited language skills is in violation of the law. (Cal. Code Regs., tit. 2, § 11028; Ortiz v. Dameron Hosp. Ass’n (2019) 37 Cal.App.5th 568, 580 ; Fragante v. Honolulu (9th Cir. 1989) 888 F.2d 591, 595 [finding that discrimination on the basis of an employee’s accent is a sufficient basis for finding national origin discrimination].)

Examples of national origin discrimination in the workplace include basing hiring and promotion decisions on an employee’s or applicant’s national origin or traits stemming from their national origin. For example, instituting English-only rules, requirements, and policies that disfavor non-English speaking employees can constitute national origin discrimination if it not important for promoting the business’s purpose.

Whether something is an important aspect of the business depends on if it is important for workplace safety and/or an essential requirement of the job. For example, a language requirement or restriction may only be imposed if it the best way to workplace safety in an environment in which clear and understandable communication between workers is crucial to prevent an accident. Another example would be the requirement of clear and fluent English for a customer facing job such as in a retail position or a call center.

While national origin discrimination may be less obvious than other forms of employment discrimination and harassment, it is still a serious legal violation. It is important to note that California law provides more protections than federal law and does not limit how much an employee can be compensated in a discrimination claim for things such as emotional distress and punitive damages.

Prohibiting Retaliation

It is also illegal for employers to retaliate against immigrant employees who exercise their rights under labor laws or assert their rights related to wages, working conditions, or other employment rights.  It is also illegal for an employer to engage in unfair immigration-related practices after an employee files a complaint or informs someone with authority of the employer’s or other party’s alleged violation of any law, regulation, or local ordinance, or informing another person about their rights.

An “unfair immigration-related practice” includes: 

• Requesting more or different documents than are required by federal law, or a refusal to honor documents that reasonably appear to be genuine.  
• Using the federal E-Verify system to check the employment authorization status of a person at a time or not required or authorized by federal law.
• Threatening to file or filing a false police report, or a false report or complaint with any state or federal agency.
• Threatening to contact or contacting immigration authorities.

This protection ensures that immigrant employees can freely voice their concerns without fear of adverse consequences such as termination, demotion, or other forms of retaliation.  Again, it is important to the State of California that all employees are protected.  If one employee did not have the same rights as another, both employees inevitably would suffer. 

Non-Disclosure of Immigration Status

Even though federal law requires all employees to submit proof of work authorization at the time of hire, employees have certain rights regarding verification of their immigration status and authorization to work.  Employers are not allowed to request or utilize an employee’s immigration status for purposes unrelated to employment, unless required by federal law or for I-9 verification purposes.  This provision is aimed at preventing the exploitation of immigrant employees and ensuring that their immigration status does not affect their employment opportunities or conditions.

Limiting Immigration-Related Threats

Under Section 1019.3, employers are prohibited from using an employee’s immigration status as a threat or coercion tactic to influence that individual to work under unfavorable conditions or accept lower wages.  This protection ensures that employers cannot leverage an employee’s immigration status to exploit or manipulate them in any way.

Access to Legal Remedies

Section 1019.4 grants immigrant employees the right to file complaints or pursue legal actions against employers who violate their rights under these labor code provisions.  It ensures that they have access to legal remedies and that employers can be held accountable for any violations. 

The statutes authorizing protection of against retaliation, including for immigrants, provides for attorneys fees and costs, meaning that if you bring a case in court and you win, the court is likely to make the employer pay for the costs of bringing your suit.  An employer may also temporarily or permanently lose their business license for engaging in unfair immigration-related practices.  In some cases, employees who bring suits against their employers for such violations may also receive up to $10,000 as a civil penalty. 

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Remember, California is committed to protecting the rights of immigrant and undocumented employees, fostering an inclusive and equitable work environment for all.  The provisions outlined in Sections 1019 et seq. establish critical safeguards against discrimination, retaliation, and exploitation.  By affording immigrant employees equal opportunities and access to legal remedies, California stands as a beacon of progress and fairness, recognizing the invaluable contributions of its diverse workforce.

It is important for both immigrant employees and employers to be aware of these labor code provisions to ensure compliance and to promote a workplace culture that respects the rights and dignity of all employees, regardless of their immigration status.  It is never ok to target someone because of their immigrant status.  By upholding these rights, California continues to set an example for the rest of the nation in championing the fair treatment of immigrant and undocumented employees.

If you believe your employer has violated California law because you exercised your rights or because of your immigration status, contact an attorney to evaluate whether you have a case.  

Our firm is one of the few firms in California that serves both English and Spanish speaking clients.  The firm’s founder’s parents immigrated to the United States from Mexico.  We take very seriously the rights of immigrants and people who are undocumented.  Schedule a free consultation with our firm by clicking here.

Be on the lookout for our next article regarding the rights of immigrant and/or undocumented employees in litigation!