It’s unlawful for an employer to employ someone who isn’t eligible to work in the United States – but to ensure that unauthorized workers aren’t exploited, an employer can’t rely on a worker’s unauthorized immigration status if that worker sues for wage and hour violations, such as the employer’s failure to pay minimum wage. Does that rule apply in wrongful termination cases, too?
Under federal law, an unauthorized worker can’t be reinstated after the worker’s employment ends, and under California law, an employee’s unauthorized status is a partial defense in a wrongful termination case – not a defense to the employer’s liability, but as to the amount of damages which the worker can recover.
Under the “after-acquired evidence” doctrine, if, after an allegedly wrongful termination, the employer discovers information that would have justified the employer’s refusal to hire the employee or its decision to terminate that employee – such as the employee’s unauthorized status – the employee can’t recover damages for lost earnings for any time after the date that the employer discovers the information.
When suing for wrongful termination, some employees wish to be reinstated, and a lost earnings claim can be a significant component of an employee’s damages for wrongful termination. Employers are therefore generally permitted to serve discovery demands on the employee in an attempt to determine whether the employee was authorized to work here or not.
But what if the employee waives the right to reinstatement and lost earnings – is the employer entitled to discovery of the employee’s immigration status then?
This was the issue in Manuel v. Brightview Landscape Services – and the Court of Appeal decided that, under those circumstances, a separate California law prohibits an employer from inquiring into the employee’s immigration status.
Rigoberto Jose Manuel worked for BrightView Landscape Services as an irrigation technician from 2007 to 2018 when he injured his back while on the job. Manuel alleged that Brightview first refused to take him to the company medical clinic, and that Brightview made him sign a waiver to get medical treatment.
After several days of back pain, Manuel went to another clinic, which cleared him to work with certain restrictions. He returned and put in one day of work, but his supervisor told him not to return, and Brightview fired him.
Manuel sued BrightView in Santa Clara County Superior Court, alleging wrongful termination and failure to allow inspection of the company’s books and records. As part of his wrongful termination claim, Manuel sought a variety of damages, but in his discovery responses, Manuel confirmed that he was not seeking reinstatement or lost earnings.
The company served discovery demands on Manuel as to Manuel’s immigration status, claiming that Manuel had quit voluntarily after he learned that federal immigration authorities had identified him as being ineligible to work in the United States, and thus that his unauthorized status was relevant. Manuel’s attorney disagreed.
The trial court agreed with BrightView and ordered Manuel to respond to the discovery, on the ground that wrongful termination was the main issue in the case, so Manuel’s immigration status and lawful ability to work here were relevant to the company’s defense.
Manuel then appealed. The case attracted the attention of numerous public interest and legal aid groups, with 15 of them filing amicus curiae briefs.
The appellate justices noted that, under California law, all “protections, rights and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”
The Court then noted that, under federal law, an unauthorized employee could not be reinstated, while under California law an employer could generally assert unauthorized status as a partial defense to damages in wrongful termination cases.
Given that Manuel had waived his right to reinstatement and lost earnings, however, his immigration status was irrelevant, and BrightView couldn’t ask him about it.
By David Krol