Employers Can’t Make California Workers Re-Verify Their Work Authorization When Not Required By Federal Immigration Law

California labor protections apply to all workers, regardless of their immigration status. 

The Ninth Circuit Court of Appeals recently relied on this principle in Santillan v. United States Waste of Cal., 853 F.3d 1035 (9th Cir. 2017) when it found that a California employer, after agreeing to reinstate a worker as part of a grievance settlement agreement, could not refuse to reinstate him because he failed to provide certain work authorization documents.

Gilberto Santillan drove a garbage truck for USA Waste of California.  The employer hired him in 1979.  Santillan was beloved by the community he served in Manhattan Beach, California.  When the company attempted to fire him in 2011, there was an outpouring of support from the homeowners he served, and the company agreed to reinstate him as part of a grievance settlement.  The grievance settlement agreement required Santillan to pass a drug test, background check, and “e-verify.”  He passed the background check and drug test, and provided his social security card and drivers license in order to complete the I-9 form provided by the employer.  However, the employer also asked for a work authorization number and an expiration date.  Santillan was unable to provide the expiration date in time, and the employer refused to reinstate him.  Santillan then sued for retaliation and age discrimination.

The employer argued that it had a legitimate, non-discriminatory reason to refuse to reinstate Santillan because he failed to bring the work authorization documentation the employer demanded.  However, the Court of Appeals found that Santillan was not required to provide the documentation under the federal law (the Immigration Reform and Control Act or IRCA) for two reasons: (1) he was being reinstated as part of a grievance settlement, therefore he is considered “continuing in his employment” and not subject to the requirements for new employees; and (2) the IRCA exempts workers hired prior to November 7, 1986 from its I-9 requirements. 

After finding that the federal law does not require the company demand the documentation in question from Santillan, the Court further found that the company’s argument that the settlement agreement required Santillan to pass “e-verify” violated California public policy.  The Court wrote “California statutes leave no room for doubt about this state’s public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights, and employee housing laws.”

Therefore, an employer may not require a worker to prove he is authorized to work, beyond the proof required by the federal law, in order to obtain a remedy for his unlawful termination—even as part of a settlement agreement.

This significant case shows the importance of protections at the state level for immigrants and workers.

Contact your labor or immigration counsel for more information.

By Xochitl Lopez | June 20, 2017

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