Undocumented Workers Can Sue But False Employment Documents Limits Recovery

As has long been established by federal law, in order to obtain employment, a newly hired employee must complete the I-9 form and must present documentation to establish their identity and eligibility to work in the United States.  Employers must honor the documents that are presented as long as they appear to be valid.

Recently, the California Supreme Court was asked to determine whether an employee who presents fraudulent documents for employment eligibility is barred from suing his employer for discrimination or wrongful termination.  The Court held the employee could sue but his recovery was limited.

When the Plaintiff applied for a job he completed the I-9 form providing a Social Security number and a resident alien card. He used the same social security information on his W-4 form.  Over several years, the Plaintiff was laid off and rehired several times on a seasonal basis. Each time he was rehired, the employee provided the same Social Security number.

The Plaintiff subsequently injured his back and was placed on restricted work.   He was not returned to work and later sued alleging disability discrimination, failure to accommodate a disability, and retaliation.

During litigation, the employer learned that the employee had fraudulently used the Social Security number of another person to fill out his I-9 and W-4 forms. The Employer sought to have the case dismissed due to the employee’s misconduct in obtaining employment using false documents.  The Employer argued the Plaintiff should be prohibited from recovering any damages because he unlawfully obtained employment.

The case went to the California Supreme Court to determine whether the Plaintiff’s wrongful conduct in using false documents barred his lawsuit or affected his damages.

In a prior case, a federal court denied awarding compensation to employees who presented fraudulent documents at the time of hiring. After the federal  court decision, California enacted several laws providing protection to undocumented workers under state employment laws (e.g. Government Code Section 7285 provides that California applicants and employees are entitled to employment rights and protections “regardless of immigration status” and, for liability purposes, “a person’s immigration status is irrelevant …”).

So the issue before the California Supreme Court was which laws govern: federal immigration laws or state laws which extend discrimination and other job protections to workers regardless of immigration status.  The Court looked to the potential for recovery before and after the knowledge that false documents had been used.

Protection Extended to Unauthorized Workers

The Court held that California laws protecting workers against wrongful employment practices extend to workers who, in violation of federal law, use false documents to secure employment.  Further, the Court held that such undocumented immigrant employees may recover all relief available under FEHA other than reinstatement and earnings lost after their employers discover they were undocumented .

What this means is that the Plaintiff could not recover any lost wages after the employer learned of his immigration status; but the employee could recover back wages during the time before the employer knew he used false documents.

• Ensure that your hiring practices include verifying eligibility for employment, by carefully reviewing all documents that employees present in support of their I-9 forms.

• Be sure that you are using the most current I-9 form. (Expires in 2016)

• If you learn that an employee has used false documents to obtain employment, you may not continue to employ the person as you could be subject to substantial fines.