Undocumented employees can bring FEHA claims despite the use of false employment documentation that would otherwise have made them ineligible to work


The California Supreme Court recently determined that employees who are not authorized to work in the United States may still bring claims against their former employers for violating the Fair Employment and Housing Act (“FEHA”), and may even recover damages (e.g., lost wages) against them.

In Salas v. Sierra Chemical Co., (2014) 59 Cal.4th 407 a former employee sued his employer under the FEHA for failure to provide reasonable accommodations for his physical disability, and for retaliation. During his employment, the employee suffered a couple of back injuries. The employee filed a workers’ compensation claim after one of the injuries. Shortly thereafter, the employer laid the employee off as a part of a seasonal reduction of workers, and the employee sued his employer. During the litigation, the employer discovered that the employee used false identification documents, without which, the employee would not have been eligible to work. The employer argued that this “after-acquired” evidence completely barred the employee’s claims. The California Supreme Court determined it did not. It concluded that FEHA’s antidiscrimination provisions apply to employees regardless of their immigration status, and therefore, the employee could continue with his suit against his former employer.

This case is important for employers who unknowingly hire undocumented workers. On the one hand, employers must comply with federal work eligibility requirements, including verification of identity and work eligibility of new employees. On the other hand, California employers may not discriminate against unauthorized employees who misrepresent their work status, even though the employees were never authorized to work for the employer in the first place. Those employees may still recover lost wages for the period before the employer learned the employee was not legally eligible to work, but not for the period after the employer learned of their unauthorized work status.


Beginning July 1, 2015, California employers, subject to limited exceptions, are required to provide paid sick leave to exempt and non-exempt employees. Employers are not required to allow employees to accrue more than 6 work days of sick leave, and may limit an employee’s annual use of sick leave to 3 work days. Employers do not have to pay employees for accrued, unused sick leave upon separation from employment.