California law forbids employers from retaliating against non-citizen employees just because they raise legitimate concerns about illegal employment practices or unsafe workplaces.
Employers are not allowed to contact ICE to get back at you for reporting these kinds of wage and hour violations. It is illegal for an employer to do so, and as a result, the employer can face legal action and stiff penalties.
Below, our California labor and employment law attorneys address frequently asked questions about immigration retaliation and how it may affect your case:
- 1. What is immigration retaliation?
- 2. What are “unfair immigration-related practices” under California law?
- 3. Are there protections against immigration raids in California?
- 4. Who enforces the California retaliation laws?
- 5. Can I file a civil lawsuit against my employer?
Immigration retaliation occurs when an employer threatens to come after you based on your immigration status in this country because you file a complaint or bring up a concern related to unfair employment practices or workplace safety. California law protects against these kinds of practices, to protect workers in California from abuses by employers.
Immigration retaliation is a major problem in California. In 2017, ninety-four cases of retaliation complaints occurred, a sharp spike from 20 such complaints in 2016.
A “protected activity” is a type of conduct that an employer may do which an employer may not retaliate against. If an employer does retaliate against the worker, it violates the law.
Under California law, protected activities include:
- Filing a claim or informing your employer of your intent to file a complaint with the Labor Commission;
- Filing a civil suit against the employer;
- Talking about your low wages or the non-payment of wages owed to you;
- Attempting to use sick leave because a family member is ill or injured;
- Engaging in political activities;
- Updating personal and work information;
- Taking time off from work due to jury duty service or to serve as a witness in a court case; and
- Reporting unsafe work practices or conditions. 1
A whistleblower is an employee who reports a company’s violation of the
- policy, or
- employee rights.
Whistleblowers are protected by various California and federal laws, but are also covered under the immigration retaliation laws if the employer threatens to contact immigration to prevent the whistleblower from talking.
If you suffer an “adverse employment action” as a result of your protected activity, possible remedies include:
- Reinstatement to your position (if you were terminated from your job);
- Payment for lost wages due to wrongful termination (“back pay“);
- Possible revocation of the company’s business’s license; and
- Possibility of an employer fine of up to $10,000 per employee for each instance of retaliation. 2
Achieving these results often takes the threat of legal action, or an actual lawsuit. Employers may resist, but the law favors the employee’s rights. An experienced employment attorney is here to help with your case.
There are specific actions that employers are forbidden from taking against an employee who files a claim or engages in any other “protected activity.” These specific actions are called “unfair immigration-related practices” and these include:
- Threatening to contact immigration authorities such as ICE on an employee;
- Requiring any employee to produce documents which are not required under current California law for any work authorization purpose;
- Threatening to file a false police report;
- Rejection of employee documents that otherwise appear to be genuine and accurate; and
- Any misuse of the E-Verify system.
The most common abuse of employees in the immigration retaliation context is when an employer threatens to contact immigration authorities. Immigration authorities can include:
- U.S. Citizenship and Immigration Services; 3
- U.S. Immigration and Customs Enforcement (ICE); 4
- U.S. Customs and Border Protection. 5
Other authorities may also be included, such as local law enforcement if those organizations are used in a retaliatory way to punish you for a protected activity. If you are unsure if a particular organization counts in your case, contact an experienced California attorney for help.
Example: Carlos has been working at a company for six months and has worked many hours of overtime. However, his company has never paid him for his extra hours nor did the company pay the overtime rate. Carlos brings this up with the company but has been ignored. He prepares to file a complaint, but his employer threatens to call U.S. Immigration and Customs Enforcement (ICE) if he does because he is an undocumented immigrant. Carlos’s employer has violated California law and is subject to penalties.
If an employer attempts to request documents that are not ordinarily required for employment verification, and that request is for the purpose of retaliating against you, the employer has violated the law. Many employers do this to attempt to “trip up” employees and scare them into not taking a certain action.
The same is true of rejecting documents for the purpose of retaliation. If the employer should accept, and otherwise would accept, your documents but chooses not to do so to get “back at” the immigrant worker, it is a violation of California law.
E-verify is an internet-based program that takes information entered by an employer from an I-9 form against the records of the U.S. Department of Homeland Security and the Social Security Administration. This comparison is done for the purpose of confirming a potential employee’s ability to work in the United States.
Abuse of the E-verify system is against California law and can subject an employer who abuses the system to significant penalties. Abuse includes any unnecessary “re-verification” or threatened re-verification that is not required by federal law. Typically, the E-verify system is only used
- when an employee is being hired, or in some cases
- when an employee is taking a new position within the same company.
While the interaction between federal and state law can be complex, California has banned all employers from complying with requests of federal immigration enforcement officers to enter any non-public area of the employer’s premises. There is also a prohibition against an employer allowing federal officials to inspect I-9 records without a judicial subpoena or warrant.
This means that an employer may not “voluntarily” agree to cooperate with immigration officials. Instead, there must be a
- subpoena or
- warrant. 6
If a California employer violates the law, it faces fines of between $2,000 to $10,000 per violation of the statute. The punishment is intended
- to prevent employer abuses of the system, as well as
- to protect California workers against abuse.
The immigration retaliation law is generally enforced by the California Labor Commissioner’s Office. 7 Under a 2018 revision to the law, the Labor Commissioner’s Office is permitted to investigate suspected violations of the law, even when no employee complaint has been filed. This can happen when the Labor Commissioner becomes suspicious of a violation during investigations.
If the Labor Commissioner determines that retaliation has occurred, the office can issue a cease and desist order. This requires the employer to quit the action which violates the law, as well as an order requiring the employer to remedy the situation.
Employees are allowed to bring a civil lawsuit under the California Labor Code without exhausting every administrative remedy. This means that an employee does not have to go through a government agency for every step of proving immigration retaliation.
Filing a civil lawsuit, including the exact type, can be determined after a consultation with an experienced employment attorney.
- Immigrant and Employee Rights Section, Department of Justice (DOJ) in Washington, D.C.
- Division of Labor Standards Enforcement (DLSE)
- Department of Homeland Security (DHS)
- California Attorney General
- Department of Industrial Relations. DLSE – Glossary.
- Cal. Lab. Code § 98.6(b)(3). 98.6(b)(3).
- U.S. Citizenship and Immigration Services. Homepage.
- U.S. Immigration and Customs Enforcement. Who We Are.
- U.S. Customs and Border Protection. About CBP. (Under the Department of Homeland Security)
- California Legislative Information. Assembly Bill No. 450.
- Department of Industrial Relations. Labor Commissioner’s Office.
- Cal. Lab. Code § 98.7(g).