When Your Employer Can — and More Likely Can’t Force You To Divulge Your Immigration Status

When Your Employer Can — and More Likely Can’t Force You To Divulge Your Immigration Status When you find it necessary to pursue a claim for wrongful termination, there are certain things you can likely expect. One is that your employer will be well-represented, and another is that your employer will use most (if not every) technique possible to try to make you drop your case or accept a settlement on its terms. For a lot of California workers, those techniques include waiving the ominous flag of immigration status over workers' heads. If you're an undocumented worker, one thing you should know is that there are only certain situations in which your employer can seek discovery of information about your immigration status as part of your wrongful termination case. In many wrongful termination cases, they're not entitled to that information and, with the help of a skilled California employment law lawyer, you can defeat that request for disclosure. R.J.M. was one of those workers. He had worked for a landscaping company for more than a decade when, in January 2018, he hurt his back at work. A doctor determined he work with restrictions. On the employee's first day back at work, the employer allegedly fired him, so he sued for wrongful termination. The employer asserted that the employee quit on his own. Specifically, the employer contended that U.S. Immigration and Customs Enforcement (ICE) had begun pursuing him and, as a result, the worker simply failed to return to the job after working his Jan. 22, 2018, shift. Based on that argument, the employer sought to force the worker to disclose several documents related to his immigration status. The appeals court decided that the employer wasn't entitled to that information. The key to the employee's success was a state statute, Labor Code Section 1171.5, which says that 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." Subsection (b) adds that, for "purposes of enforcing state labor, employment, civil rights, consumer protection, and housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown... that the inquiry is necessary in order to comply with federal immigration law."

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Immigration Status is Relevant Only in a Narrow Slice of Wrongful Termination Cases

The court noted that the exception -- when "inquiry is necessary in order to comply with federal immigration law" -- is a narrow one. The court explicitly clarified that this exception is only triggered when a worker "seeks remedies necessarily in violation of federal immigration law, such as reinstatement or post-discovery backpay." R.J.M.'s employer never established that R.J.M. was seeking those remedies, so it was not entitled to invoke the exception in this wrongful termination case and, as a result, the employee wasn't required to turn over the immigration status information the employer sought through the pretrial discovery process. Threats of exposure regarding one's immigration status can be extremely powerful ones for many undocumented workers in California. However, don't let someone use those threats to get you to give up pursuing your legal rights in court. Instead, get in touch with legal counsel upon whom you can confidently rely. The skilled attorneys at Galine, Frye, Fitting & Frangos, LLP are here to help you. The law in California providers with many protections, and most of those apply regardless of immigration status. Contact us at 650-345-8484 or through our website to find out more about how we can help you.

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