In an era of increasing uncertainty and danger for immigrants, two recent Ninth Circuit decisions demonstrate a commitment to protecting all workers’ rights.
In April, the Ninth Circuit held that conditioning an employee’s reinstatement on his or her immigration status violates California public policy. In Santillan v. USA Waste of California, Inc., 853 F.3d 1035 (9th Cir. 2017), Gilberto Santillan was a residential garbage truck driver for 32 years. In 2011, Santillan filed a formal grievance through his union asserting that he was wrongfully terminated. In a settlement, USA Waste agreed to reinstate Mr. Santillan, provided that he provide proper work authorization pursuant to the 1986 Immigration Reform and Control Act (IRCA). Santillan could not provide an expiration date for his work authorization, and six days later USA Waste again terminated Santillan, citing his failure to comply with IRCA.
Last month, the Ninth Circuit held that an employer’s attorney can be liable for retaliation where they report an employee to Immigration and Customs Enforcement (ICE). In Arias v. Raimondo, No. 15-16120, 2017 WL 2676771, (9th Cir., June 22, 2017) José Arnulfo Arias filed claims against his employer, Angelo Dairy, for violations of the Fair Labor Standards Act (FLSA) in 2006. The state court trial was set for August 2011. In June 2011, Defendant’s attorney, Anthony Raimondo notified ICE that Arias may be undocumented, to get him deported. Raimondo had reported employees to ICE in at least five other cases. Arias then filed a FLSA retaliation complaint against both Angelo Dairy, which settled prior to the Ninth Circuit decision, and Raimondo. The Ninth Circuit held that Raimondo could be held liable under FLSA for retaliation, reasoning that retaliation provision broadly refers to any person and expressly extends to legal representatives. It further reasoned that the purpose of anti-retaliation provisions is to ensure that workers can exercise their rights without interference.
These decisions are important victories for immigrant workers and their advocates. In California, immigrant workers – even undocumented workers – have the same entitlement to employment protections as other workers. Though dangers remain for immigrant workers, the Ninth Circuit has created stronger protections by removing barriers to reinstatement for immigrant workers. Employers and their agents may also be liable if they report employees to ICE after they assert their rights.