In the recently decided case Kao v Joy Holiday, the appellate court confirmed that a worker waiting for his H1B visa to be approved / processed must be treated as a regular employee and be paid accordingly. In that case, the employer claimed that Kao was just a trainee during the 11 months of working before having his work visa approved. The court disagreed. The court stated: employee is defined under the FLSA as “any individual employed by an employee and is broadly construed to encompass virtually “all workers not specifically excepted.” Patel v. Quality Inn South (11th Cir. 1988). The FLSA protects undocumented aliens, making an initial lack of a work permit irrelevant. Only a person receiving training but no salary, and whose work serves only his or her own interest, is a non-employee trainee under the FLSA. Walling v. Portland Terminal Co. (1947).
California law is in agreement on this point with FLSA (Federal Labor Standards Act), applying an even broader definition of employee than does the FLSA. Martinez v. Combs (2010). An employee is “any person employed by an employer,” an employer is one who “employs or exercises control over the wages, hours, or working conditions of any person” and “employ” means “to engage, suffer, or permit to work.” “To employ, then, . . . has three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” The definitions are sufficiently broad to encompass a proprietor who employs a worker by contract, permits work by acquiescence, or suffers work to be performed by a failure to hinder. A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.”
Thus, if you report to work prior to receiving a work permit from the immigration authorities, you have the same regular employee rights to compensation, including minimum wage, overtime, meal break and rest break and any other rights and protections as available under the law to all other employees. You may find below a link to download the full Kao v Joy Holiday decision.
Many employees and employers believe that workers who work illegally or whose residence or immigration papers are otherwise not in order and do not allow them to lawfully work in the us cannot enforce their employment rights, such as filing claims for discrimination, wrongful termination, unpaid wages and other workplace violations. This is not correct.
Like with most other civil rights, immigration status has no relevance to a person's ability to make a claim against his or her employer. Under California law, “all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” Cal. Lab. Code § 1171.5(a). The California courts has emphasized that California “statutes leave no room for doubt about this state’s public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights, and employee housing laws.” Hernandez v. Paicius (2003).
Therefore, any employer who thinks that he can get away with discriminating, harassing, retaliating or not paying correct to an employee whose visa has expired or wasn't approved risks being sued by that employee in exactly the same way as he would be by a US citizen or a permanent resident. It's important to remember the following distinction: it's true that it's illegal to hire or be hired for work without proper employment authorization. However, if an employee who is not authorized to work in the US was hired to work, then he has virtually the same rights as any other employee.
Generally, you cannot sue your employer for something that might happen but hasn't happen yet. Thus, even if you are absolutely sure that you will be illegally fired because of your age, you can't file a claim for wrongful termination and age discrimination in court until your employer actually terminates your employment. However, there are at least three things you can and should do to enhance your potential case while you are still employed there:
(a) Continue doing the best job you can, so that any argument that the reason for your termination is your performance becomes week and unconvincing. Poor performance is one of the employers' favorite excuses for terminating an older worker, so the better your performance is, the harder it will be for the employer to defend the case.
(b) Keep track of all the older people who are being "laid off" or replaced with younger ones. Find out ages of those who are fired and hired. This will help you determine whether there is a clear pattern of discriminating against older workers. This can be very useful in proving your age discrimination case in the future.
(c) Pay attention to any of management's statements, e-mails or postings on social media or anywhere else that in any way suggest that they prefer to hire and keep younger employees over older ones. Ask your co-workers if they have heard anything about the employer's attempts to get rid of older workers or about the company's strong preference for hiring younger employees. This type of evidence, even if it's just one e-mail or one statement, can make a difference between having no case and having a case, and between having a weak case v having a stronger case.
On September 11, 2012, Plaintiff Gabriel Alfonso was brutally attacked by a co-worker. About 9 days earlier, that atacker was arrested for threatening Plaintiff and another employee. After the attacker was released from jail, he admittedly wanted to "get back at" Plaintiff for having him arrest. Plaintiff reported his concerns to the employer, but the employer allowed the attacker to return to work after imposing a short "colling off" period. Plaintiff's injuries included multiple facial fractures, orbital fracutre and mild traumatic brain injury. Plaintiff was also diagnosed with Post Traumatic Stress Disorder (PTSD) and received consistent psychological counseling in connection with the incident.
Plaintiff sued the employer for negligence and for failure to take reasonable measures to prevent violence. Throughout the case, the Defendants claimed that Plaintiff was faking and/or exaggerating his injuries, even though the victim's own treaters confirmed the severity of the injuries and the pain that Plaintiff was dealing with. I can imagine that accusing Plaintiff of faking his injuries, given the traumatic nature of his injuries, angered the jury and contributed to the generous award in this case. The Solano County jury returned a veridict for Plaintiff in the amount of $420k in wage loss, $15,150 in past medical expenses and $1.5m in pain and suffering damages for a total of nearly $2m. (Affonso v Miguel Rocha D.B.A. M.R. Enterprise, Case No. FCS-040957).
If you suspect that you are being misclassified as an independent contractor when you should in fact be treated as an employee, you might be facing a dilemma of whether to bring this to your employer's attention or not. This is a legitimate concern, becuase although it would be unlawful for your employer to retaliate against you for complaining about not being classified and paid properly, they can still choose to retaliate and discipline you or fire you for some unrelated bogus reason. Therefore, you should consider a number of factors when deciding whether to complain about being misclassified or not:
1. Consult an attorney to determine whether you are in fact misclassified. Often, whether you are properly classified as a contractor is a close call. An exeprienced employment attorney should be able to evalute your job duties and terms of your employment to give you a better idea of whether you should be classified as an employee or an independent contractor.
2. Consider your workplace culture and your relationship with the employer. What is the atmosphere like at your company? Is there a true open door policy where employee share their concerns and employers are trying to address them? Did you notice other employees being retaliated against? In other words, you should aks yourself how likely you think the employer will retaliate against you based on your observation of how they treat employees in general.
3. Can you afford taking the risk of being retaliated against? Can you afford dealing with the worst case scenario of being fired? Do you really like your job or you don't really care if you are fired and you are ready to move on anyway? Can you financially handle not working for a while regardless of whether you have a case against the employer or not?
If you decide to bring the issue of misclassification to your employer's attention, and you want to avoid being retaliated against, make sure you watch this video below for important advice on how to complain: