Message from the Chair

• Jurisdiction: California,United States
• Author: By Bryan Schwartz
• Publication year: 2017
• Citation: Vol. 31 No. 3

Message From the Chair

By Bryan Schwartz

Bryan Schwartz is the Chair of the State Bar of California's Labor and Employment Law Section. He also serves on the boards of the California Employment Lawyers Association, the Legal Aid Society-Employment Law Center, and the Foundation for Advocacy Inclusion and Resources (FAIR). His Oakland-based firm (www.BryanSchwartzLaw. com) represents employees in individual, class, and multi-plaintiff actions prosecuting discrimination, whistleblower, wage and hour, and other workers' rights claims in federal and state court and a variety of administrative venues.

DOING OUR JOBS FOR IMMIGRANT WORKERS AND THEIR CALIFORNIA EMPLOYERS

According to the nonpartisan Public Policy Institute of California, about 27% of California's population is foreign-born—more than 10 million people—and 80% are working-age adults. In total, a third of California workers are immigrants, and nearly half of California's kids have at least one immigrant parent. Undocumented immigrants are 10% of California's workforce, according to our State's Controller, Betty Yee—with an impact of more than $180 billion a year in our state's economy.

Given the profound force that immigrants, both documented and undocumented, represent in California's workplaces, each of us must consider the lawful way to treat immigrant workers. It is, or should be, in our basic job description as California labor and employment attorneys, on both the plaintiffs' and defense side of the practice.

Here are some key facts to know and advise your clients, specifically as to undocumented workers:

Undocumented Workers Are Protected Against Discrimination

The Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act protect against discrimination, including national origin-based discrimination and harassment—and those protections extend to all immigrant employees, including undocumented workers. Employers cannot rely on after-acquired evidence or the "unclean hands" defense as a complete bar to a worker's relief under the antidiscrimination laws. See Salas v. Sierra Chemical Co., 59 Cal. 4th 407 (2014) cert. denied, 135 S. Ct. 755; see also Rivera v. NIBCO, 364 F.3d 1057 (9th Cir. 2004) (precluding discovery on immigration status in early stages of Title VII and FEHA litigation, and doubting undocumented workers are precluded from Title VII relief); E.E.O.C. v. Tortilleria "La Mejor", 758 F. Supp. 585, 590 (E.D. Cal. 1991) (finding that undocumented workers are protected under Title VII).

Under Salas, undocumented workers are entitled to a lost pay award under the anti-discrimination statutes in the period before the employer's discovery of the worker's immigration status (including the post-termination period before discovery of...