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Immigrant status counts in failure-to-hire cases

by on
in Hiring,Human Resources

It’s illegal for employers to use em­­ployees’ undocumented status as an excuse to avoid paying the minimum wage and overtime. Courts regularly allow wage-and-hour lawsuits filed by employees who lack authorization to work in the United States. The idea is that allowing suits for unpaid past work protects workers from exploitation.

But that’s not true in failure-to-hire cases—because if an applicant isn’t authorized to work, the em­­ployer couldn’t hire the worker at all.

Recent case: Vincente Salas worked for a swimming pool chemical company. The work was seasonal and em­­ployees were frequently terminated and then rehired the following year. Salas apparently used someone else’s Social Security card to prove his legal status.

He was injured at work and re­­ceived workers’ compensation benefits. The next year, Salas wanted to return, but hadn’t been fully cleared for work by his doctor. A supervisor informed him that company policy re­­quired complete recovery for former employees to be rehired.

Salas sued, arguing that under the California Fair Employment and Housing Act, he was entitled to reasonable accommodations for his injury. Salas said the company had refused to offer any accommodations at all.

But during pretrial proceedings, the company discovered Salas’ Social Security card problem and asked the court to toss out the case. It argued that it could not legally rehire Salas since doing so would violate federal im­­mi­­gra­­tion laws. Therefore, it was irrelevant whether he would otherwise have been entitled to reasonable accommodations.

The California Court of Appeal agreed with the employer. It reasoned that someone who is not authorized to work cannot sue for failure to hire for any reason. (Salas v. Sierra Chemical, No. C064627, Court of Appeal of California, 3rd Appellate District, 2011)

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