On June 26, 2014, in Salas v. Sierra Chemical Co., the California Supreme Court held that undocumented immigrants who fraudulently obtained employment still may pursue retaliation and discrimination claims under the California Fair Employment and Housing Act (FEHA).  In its decision, the Court also found that the affirmative defenses of unclean hands and after‑acquired evidence, which typically can limit an employee’s ability to obtain relief, are not complete defenses to FEHA claims brought by undocumented workers.  Under the Court’s ruling, employees who used false documentation to obtain employment not only may bring such a lawsuit but also can recover lost wages, emotional distress damages and attorneys’ fees, even if they actually were never legally entitled to work for the employer.
Continue Reading Undocumented Workers May Pursue Claims Under California’s FEHA, So Says The California Supreme Court

On October 23, 2008, DHS announced the issuance of the Final Supplemental Rule in furtherance of the No-Match Safe Harbor Regulations published in August of 2007. As readers may recall, those regulations gave employers a procedure to follow in responding to "No Match" letters issued by the Social Security Administration. Following the procedure would allow employers and managerial employees to avoid the risk of prosecution for having "constructive knowledge" that an employee on the no match list was not authorized to work in the United States.


Continue Reading Final No-Match Letter Rule Announced

Through increased fines and a proposed regulation defending its "no-match letter" program, the federal government continues to enforce the prohibition against illegal employment.  Earlier this year, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) increased civil fines for employers that violate immigration laws.  The increased penalties are the result of an "inflation adjustment," the first since 1999.  These regulations target employers that knowingly employ unauthorized aliens or violate specified acts pertaining to the employment eligibility verification process (Form I-9).


Continue Reading While The Federal Government Remains Serious About Immigration Enforcement, Its “No-Match Letter” Program Remains In Limbo

On October 10, 2007, a U.S. federal court judge issued a preliminary injunction, preventing implementation of the “no-match letter” program developed by the Department of Homeland Security.  The “no-match letter” program was designed to crack down on the employment of undocumented immigrants.  Under the proposed program, employers notified of a “no-match” can be "safely harbored" if they acted within 90 days to verify the employment eligibility and authenticity of the social security number/documentation presented by their affected employee.  Employers would potentially face significant civil fines, as well as criminal charges, for failure to comply with the program and for continuing to employ undocumented aliens.


Continue Reading COURT SAYS “NO GO” TO “NO-MATCH” LETTERS

The Social Security Administration ("SSA") regularly issues "No-Match" letters to employers when it determines that the information provided by an employee on his or her W-2 form does not match that found in the SSA’s database.  On August 15, 2007, the Department of Homeland Security adopted a new rule entitled "Safe Harbor Provisions for Employers Who Receive a No-Match Letter."  The new rule provided employers 90 days to clear up the discrepancy noted in a No-Match letter and, if unable to do so, the employer would be required to terminate the employee. The rule was scheduled to take effect on September 14, 2007.


Continue Reading Federal Court Stays New Rule Requiring Employers To Terminate Employees Who Cannot Prove Their Right To Work In The United States