Limitations on Wrongful Termination Claims by Undocumented Workers
By Greg Berk
Employers that are sued by an employee sometimes find out during the course of the litigation that the employee is not authorized to work or be in the U.S. Such discovery will require the employer to terminate the employee. However, the terminated employee will still have the right to recover on any meritorious claims arising prior to the discovery, subject to certain limitations.
At the federal level, the leading case is the U.S. Supreme Court decision in Hoffman Plastics v. NLRB. The Court held that federal immigration law trumps any National Labor Relations Act (NLRA) claims for wrongful termination for alleged union activities, since the plaintiff had no legal right to work or be in the U.S. to begin with.
A corollary to Hoffman is that employers can and should terminate employees who have no legal right to work in the U.S. Any other result would place the employer at odds with federal I-9 rules regarding liability for knowingly hiring or retaining unauthorized workers. Hoffman Plastics shields employers from wrongful termination claims in this circumstance. The employer may still be liable for any wage/hour or other meritorious employment claims arising prior to termination.
In California, the leading case is Rodriguez v. Kline, which held that immigration status can only be introduced at trial in regards to the plaintiff's future earnings since the plaintiff has no legal right to be in the U.S. Immigration status is irrelevant as to any other meritorious claim covering the period while the plaintiff was actually employed. And as to future earnings, that would be calculated based on the plaintiff's home country wage standards, not California wages.
Employers are wise to consult with counsel prior to termination of an allegedly undocumented worker in order to thoroughly review the I-9 and to accurately confirm that the employee is in fact not authorized to work in the U.S.
For assistance with employment-related immigration needs, please contact the chair of Carlton DiSante & Freudenberger's immigration practice group, Greg Berk.