California law forbids employers from retaliating against non-citizen employees just because they raise legitimate concerns about illegal employment practices, wage and hour violations, or unsafe workplaces.
Employers who contact ICE or otherwise retaliate against immigrant workers for engaging in “protected activities” face legal action and stiff penalties.
Below, our California labor and employment law attorneys address the following topics re. immigration retaliation and how it may affect your case:
- 1. Protected Activities
- 2. “Unfair Immigration-Related Practices”
- 3. Immigration Raid Protections
- 4. Enforcement
- 5. Can I sue?
- Additional Resources
1. Protected Activities
California law prohibits immigration retaliation. This occurs when an employer threatens to come after you based on your immigration status because you engaged in a “protected activity.” Examples of protected activities include:
- Filing a claim or informing your employer of your intent to file a complaint with the Labor Commission;
- Whistleblowing (reporting company violations);
- 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
California’s economy is largely dependent on immigrants.
2. “Unfair Immigration-Related Practices”
If you are a non-citizen, your employer is not allowed to take certain actions against you for engaging in protected activities. These prohibited “unfair immigration-related practices” include:
- Threatening to contact immigration authorities such as ICE on an employee;
- Requiring you to produce documents which are not required under current California law for any work authorization purpose;
- Threatening to file a false police report;
- Rejecting your documents that otherwise appear to be genuine and accurate; and
- Any misuse of the E-Verify system.
If your employer commits an unfair immigration-related pratice, you can file a complaint with the California Labor Commissioner or file a lawsuit. Possible remedies include:
- Reinstatement to your position (if you were terminated from your job);
- Payment for lost wages due to wrongful termination (“back pay“);
- Revocation of the company’s business’s license; and/or
- Employer-paid fines of up to $10,000 per each instance of retaliation. 2
Who are the immigration authorities?
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.; and/or 5
- local law enforcement (if they are used in a retaliatory way to punish you for a protected activity).
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.
Can an employer require extra documentation or reject my documents?
Employers may not request documents that are not ordinarily required for employment verification for the purpose of retaliating against you. 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 your documents but rejects them to get “back at” you, it is a violation of California law.
What is the E-verify system?
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
- when an employee is taking a new position within the same company.
California employers cannot retaliate against non-citizens employees for calling out labor violations.
3. Immigration Raid Protections
California law prohibits employers from complying with requests of federal immigration enforcement officers to enter any non-public area of the employer’s premises. Employers also may not allow 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.
If an employer violates the law, it faces fines of $2,000 to $10,000 per violation. 6
4. Enforcement
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 stop violating the law and to remedy the situation.
5. Can I sue?
Yes. In fact, you are allowed to bring an immigration retaliation lawsuit against your employer without exhausting every administrative remedy first (such as by filing a complaint with the California Labor Commissioner).
An experienced labor law attorney can help you determine the best way to approach your case.
Additional Resources
For more information or help, refer to the following organizations:
- American Civil Liberties Union (ACLU): The ACLU works to defend and preserve the rights and liberties of immigrants through litigation, advocacy, and public outreach.
- Immigrant Legal Resource Center (ILRC): The ILRC provides legal resources, education, and advocacy to advance the rights of immigrants.
- National Immigrant Justice Center (NIJC): NIJC provides legal services to immigrants, refugees, and asylum seekers, and advocates for their human rights.
- Coalition for Humane Immigrant Rights (CHIRLA): CHIRLA advocates for immigrant rights and provides legal services, education, and community organizing.
- American Immigration Council: The American Immigration Council provides research, analysis, and legal resources on immigration issues.
Legal References
- 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).