Can You Sue for Lost Wages in California if You are an Undocumented Worker?

Undocumented workers face many challenges. If you are an undocumented worker in California, you might wonder if you have the same rights as other workers. California law is clear: as an undocumented worker, you have the same fundamental employment rights as documented workers. This includes the right to sue for lost wages if your employer fires you for discriminatory reasons. A recent California Court of Appeals decision confirms this. According to the ruling, an undocumented worker can recover lost wages in a workplace discrimination case if the employee cannot prove they were aware of the worker’s immigration status at the time of the termination. 

About the Case

In this case, a former cook, whom we will refer to as M.M., was denied raises, excluded from tip-sharing, and required to work extensive hours over the years without adequate rest or meal breaks. Often, the employer paid the plaintiff in cash and failed to maintain employment records. When M.M. requested a raise and better treatment, the employer responded by making ageist comments. M.M. was called “old”, “invisible,” and “used.” Ultimately, she was fired on the grounds that she did not submit a Social Security Card. However, evidence revealed that the employer did not verify the documentation of other employees, either, most of whom were born in Mexico.

M.M. filed a lawsuit in 2019 alleging the following;

• Age discrimination
• Wrongful termination
• Wage and hour violations
• Failure to allow inspection of personnel and payroll records

Following a two-day bench trial in November 2021, the court awarded the claimant the following damages;

• $84,616 for lost wages after termination
• $50,000 in non-economic damages
• $24,207 for unpaid wages and penalties
• $1,500 for denied access to records
• $77,188 in attorney fees (awarded separately)

The employer appealed this decision, arguing that M.M. was not entitled to lost wages after her termination since she was undocumented. This argument relied upon a California Supreme Court decision (Salas v. Sierra Chemical Co.), which limits back pay in certain cases involving undocumented workers.

The appellate court rejected this argument. The court held that the Salas case only restricts claims for lost wages if, at the time of termination, the employer is aware that the worker is undocumented. In this case, the employer had suspicions regarding M.M.’s immigration status but never verified it. He asked for a Social Security Card, but did not verify other employees’ documents or follow up. The court held that suspicion is not the same as knowledge. Because the employer in this case was unaware that the plaintiff was not authorized to work in the U.S., federal immigration law did not shield them from liability under California law.

Ultimately, the full damages awarded to M.M., including the award for lost wages after her termination, stood.

What Does This Mean for You?

If you are an undocumented worker in California and have been denied wages or breaks, wrongfully terminated, or discriminated against, you have the right to pursue legal action. Your case will be assessed based on the evidence, not your immigration status. Do not let fear or uncertainty prevent you from protecting your rights. You are still a worker and deserve fair treatment.

Contact a California Employment Lawyer

If you are an undocumented worker and believe an employer has violated your rights, contact a California employment lawyer near you.