Your immigration status is simply not relevant in a case involving a workplace injury or the non-payment of wages and penalties. It does not matter if you are an undocumented immigrant when you were injured or not paid correctly. California law protects you. Federal law has also echoed the protection afforded workers regardless of their immigration status to basic worker protection laws, including penalties, when one is not paid correctly.
Under California Labor Code 1171.5, a worker’s immigration status is irrelevant for purposes of Workers’ Compensation. Also, it is not mandatory to list a social security number on an Application for Adjudication for a Workers’ Compensation Claim or on the forms filed with the Labor Commissioner’s Office of the State of California. Under the same law, you may not be asked questions about your immigration status by an employer’s representative when you file a claim for unpaid wages.
California also recently passed laws that protect immigrant workers.
First, on October 11, 2013, Governor Brown signed AB 263 creating momentous protections for immigrant workers against employer retaliation. The bill expands existing law by prohibiting employer retaliation against workers who come forward to enforce their rights under California’s labor laws, or otherwise engage in protected conduct. The new law will take effect on January 1, 2014.
AB 263 protects workers who complain either orally or in writing about unpaid wages against employer retaliation and entitles workers to reinstatement and reimbursement for lost wages. Any person who violates this provision of the law is subject to a civil penalty of up to $10,000 per violation. Willful refusal by an employer to reinstate or reimburse an employee who is the victim of retaliation is guilty of a criminal misdemeanor.
The bill also makes it unlawful for employers to engage in unfair immigration-related employment practices. Such unlawful immigration-related employment practices include: threatening to call or contacting immigration authorities; threatening to file or filing a false police report; requesting new or different documents than required by federal immigration law for employment purposes; or using the federal E-Verify system to check the employment authorization status of a worker at a time or in a manner not required by federal immigration law.
The bill also creates a rebuttable presumption of retaliation if any adverse action is taken against a worker within 90 days of his or her exercising a protected right.
This bill also prohibits an employer from discharging a worker or discriminating, retaliating, or taking any adverse action against a worker because he or she updates or attempts to update his or her personal information with the employer, unless the changes are directly related to the skill set or requirements of his or her job.
The text of the bill can be found at http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml.
Second, on October 5, 2013, Governor Jerry Brown signed eight immigration-related bills that expand workplace and civil rights for immigrants while making the declaration that “While Washington waffles on immigration, California’s forging ahead.”
AB 524, which enhances immigrant worker rights by making it a crime for employers to induce fear by threatening to report workers’ immigration status. SB 666 which punishes employers who retaliate against workers based on citizenship or immigration status with a civil fine of up to $10,000 and suspension or revocation of their business licenses.
The importance of these laws is that no longer will unscrupulous employers pray on undocumented immigrants. The belief that one can exploit a worker and then threaten them if they dare complain was firmly stamped out by California’s legislature and Governor.