Many people, including judges and jurors, harbor social prejudices against immigrants, particularly undocumented immigrants. In litigation, disclosure of immigration status can expose undocumented employees to prejudices which pose concrete risks including deportation, lower credibility before a judge or jury and a reduction of case value. When representing undocumented clients, it is important to think ahead about how to shield your clients from the introduction of and comment on evidence related to immigration status throughout each step of litigation.
I. Claims
California law generally extends to all individuals regardless of immigration status but attorneys should be aware of certain common factual patterns involving undocumented employees which give rise to a variety of claims. See Cal. Civ. Code § 3339(a) (“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 who have applied for employment, or who are or who have been employed, in this state.”).
a. Threats of Deportation
Undocumented employees are often abused by employers who threaten to report them or do report them to U.S. Immigration and Customs Enforcement (“ICE”) or other federal, state or local agencies.[1] If such a threat or report arises as retaliation for an employee exercising a protected right, the employee may assert a retaliation claim under California Labor Code section 244(b).[2] In addition, employers can lose their business license and face criminal liability for such acts. See Cal. Bus. & Prof. Code § 494.6; see also Cal. Penal Code §§ 519, 524. Further, if an attorney becomes involved in making such reports or threats, the attorney can face suspension, disbarment or other forms of discipline. Cal. Bus. & Prof. Code § 6103.7.
b. No-Match Letters
Undocumented employees are also frequently subject to threats of termination or actual termination due to “no match letters.” “No match letters” are letters to an employer from the Internal Revenue Service (“IRS”) or the Social Security Administration (“SSA”) stating that an employees’ social security number (“SSN”) listed on the employee’s W-2 form does not match the social security number in the IRS’ or SSA’s records. See Aramark Facility Servs. v. SEIU, 530 F.3d 817, 820 (9th Cir. 2008) (where a “no-match letter” from the SSA indicated that Aramark had reported information for 48 of its employees that did not match the SSA’s database). However, the Ninth Circuit held that “no match letters” from the IRS or SSA do not constitute constructive knowledge of an employee’s work authorization and do not provide a legal basis for terminating an employee. See id. at 826-828 (finding that “no-match letters” are not intended to contain information regarding an employees’ immigration status and “an SSN discrepancy does not automatically mean that an employee is undocumented or lacks proper work authorization” since mismatches could occur for a number of reasons including “typographical errors, name changes, compound last names prevalent in immigrant communities, and inaccurate or incomplete employer records.”). Because immigration compliance is not a proper justification for terminations based on “no-match letters” alone, such terminations may give rise to a variety of claims, including wrongful termination, harassment or discrimination. See id.
c. Discrimination and Harassment based on Immigration Status
California’s Anti-Discrimination laws extend to immigrants, including undocumented immigrants. Cal. Code Regs. tit. 2 § 11028. On July 1, 2018, new regulations promulgated by California’s Fair Employment and Housing Council [3] (“FEHC”) clarified that discrimination based on immigration status is prohibited under the Fair Employment and Housing Act (“FEHA”). Cal. Code Regs. tit. 2 § 11028.
Under the FEHA, it is unlawful for an employer to discriminate against an employee “in compensation or in terms, conditions or privileges of employment” due to their national origin. Cal. Gov’t. Code § 12940(a). The 2018 regulations explicitly state that under the FEHA the “national origin” protected category encompasses an employee’s immigration status. Cal. Code Regs. tit. 2 § 11028(f)(3). An employer who discriminates against an employee or applicant due to immigration status, must demonstrate by “clear and convincing evidence” that such discrimination is “required in order to comply with federal immigration law.” Id. Additionally, citizenship requirements that are a pretext for discrimination or serve the purpose of discriminating against employees or applicants on the basis of national origin or ancestry are unlawful. Cal. Code Regs. tit. 2 § 11028(h).
The 2018 regulations also explicitly state that threats of deportation or derogatory comments about immigration status or mockery of an accent or language may constitute harassment under the FEHA. Cal. Code Regs. tit. 2 § 11028(j). Even a single threat of deportation, derogatory comment or incident of mockery may give rise to an unlawful hostile work environment under the act. Id.
II. Forms of Relief
Though immigration status is irrelevant to establishing liability in employment cases, in some limited circumstances, immigration status can be relevant to establishing available remedies. See Cal. Lab. Code § 1171.5(b); see also Cal. Civ. Code §§ 3339(a)-(b). Undocumented employees are not entitled to some forms of prospective remedies because they are considered to be unavailable for work. For example, reinstatement is explicitly unavailable to undocumented employees under California Labor Code section 1171.5(a). Furthermore, backpay is unavailable to undocumented employees under the National Labor Relations Act (“NRLA”). Hoffman Plastic Compounds, Inc. v. NRLB, 535 U.S. 137, 151 (2022) (holding that the Immigration Reform and Control Act (“IRCA”) foreclosed the NLRB from awarding backpay to undocumented employees who were not legally authorized to work).[4]
Prayers for relief may be narrowly constructed in order to limit inquiries into immigration status. For example, plaintiffs may choose to only seek wages for work already performed, which undocumented immigrants are undoubtedly entitled to, or may consider seeking only “garden variety” emotional distress damages in order to limit or keep out medical records which may disclose a client’s immigration history or status. See, e.g., Valiavacharska v. Celaya, No. 10-4847 JSC 2011 WL 4479341, at *2 (N.D. Cal., Sept. 26, 2011) (finding that plaintiff only waives her privacy rights to mental health records by “asserting more than a garden-variety claim of emotional distress.”).
III. Discovery
In discovery, Defendants may seek to uncover four broad categories of immigration-related evidence: 1) geography-related evidence, including evidence related to place of birth, marriage, education and travel outside of the U.S.; 2) evidence related to interactions with immigration entities, for example interactions with the Department of Homeland Security, including ICE; 3) evidence related to immigration history, for example, how and when an employee entered the country, an employee or an employee’s family members’ immigration status and length of residence in the U.S.; and 4) document-related evidence, including information regarding an employee’s SSN, Individual Taxpayer Identification Number (“ITIN”), use of false documents or I-9 documents.
If a defendant insists on conducting discovery into such immigration-related evidence, plaintiffs may seek a protective order. In Rivera v. NIBCO (“Rivera”), the Ninth Circuit upheld a protective order issued by a magistrate judge under Federal Rule of Civil Procedure (“FRCP”) 26 which barred inquiry into plaintiffs’ immigration status through discovery. 364 F. 3d at 1061. The protective order barred all questions going directly to immigration status and barred disclosure to third parties of responses to questions indirectly going to immigration status, such as places of marriage, education background, date of birth and criminal convictions, among others. Id. at 1062. The Ninth Circuit found that “[g]ranting employers the right to inquire into workers’ immigration status […] would allow [employers] to raise implicitly the threat of deportation and criminal prosecution every time a worker, documented or undocumented, reports illegal practices […].” Id. at 1065.
IV. Trial
a. Bifurcation
In order to further prevent immigration-related evidence from being presented at trial, plaintiffs can move to bifurcate the liability and damages portions of trial. In Rivera, the plaintiffs, a group which included employees who were legally entitled to work and others who were not, sought to bifurcate the liability and damages portions of trial. No. CIV-F-99-6443 AWISMS, 2006 WL 845925 (E.D. Cal. Mar. 31, 2006). The Eastern District instituted a bifurcation process under FRCP 42(b) whereby the jury would hear all evidence regarding damages, except evidence relating to immigration status, and would determine a backpay award for each plaintiff. Id. at *8. After the jury made its award, the plaintiffs would submit social security administration letters and any other information that the defendant would persuade the court was necessary to determining immigration status. Id. Then, the court, in camera, would review the letters and determine who was entitled to backpay. Id. Finally, the court would make reductions and award an aggregate amount, which the plaintiffs’ attorneys would distribute to the plaintiffs. Id.
b. Motions in Limine
California public policy favors the exclusion of immigration-related evidence in open court, including trial. California Senate Bill (“SB”) 836 signed into law in 2022 and codified in California Evidence Code (“CEC”) sections 351.3 and 351.4 prohibits the disclosure of a person’s immigration status in an open court unless the party who wishes to introduce such evidence requests an in-camera hearing and the presiding judge determines the evidence is admissible. The filing motions in limine can further prevent the introduction of immigration-related evidence at trial.
Motions in limine may cite to California law stating that immigration-related evidence is irrelevant to establishing liability. See Labor Code §1171.5(b); Cal. Civ. Code § 3339(b). Further, if an employee is not seeking prospective remedies like reinstatement and frontpay or backpay, plaintiffs may argue that the introduction of immigration-related evidence is irrelevant to establishing damages. See Hernandez v. Paicuis, 109 Cal. App. 4th 452, 462 (2003) (holding that a trial court erred in denying plaintiff’s motion in limine to exclude immigration-related evidence where the plaintiff was not claiming loss of future earnings); see also Cal. Civ. Code § 3339(a). Plaintiffs may also cite to the prohibition against character evidence, the ban on extrinsic evidence or the exclusion of evidence that is more prejudicial than probative under the Federal Rules of Evidence or the California Evidence Code. See Fed. Rules Evid., rules 403, 404, 608, 28 U.S.C.A.; Cal. Evid. Code §§ 352, 770, 1101.
V. Conclusion
Representing undocumented employees can pose many challenges to employment litigators. Through strategizing and understanding the legal tools available to protect undocumented employees, litigators can obtain significant victories for their clients while protecting their exposure to prejudices or the threat of deportation.
[1] As underscored by the Ninth Circuit: “[w]hile documented workers face the possibility of retaliatory discharge for the assertion of their labor and civil rights, undocumented workers confront the harsher reality that, in addition to possible discharge, their employer will likely report them to the INS and they will be subjected to deportation proceedings or criminal prosecution.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004)
[2] This section also covers threats against employees’ family members.
[3] Now named the Civil Rights Council
[4] Whether backpay is an available remedy in TVII or FEHA cases remains a question of unsettled law. However, the Ninth Circuit expressed doubt that Hoffman precludes an award of backpay in Title VII cases because such cases (like FEHA) rely on private actions for enforcement. See Rivera, 364 F.3d at 1066-67.
