Requiring an Employee to Verify His Immigration Status as a Condition to Reinstate His Employment Would Violate California Public Policy

Requiring an Employee to Verify His Immigration Status as a Condition to Reinstate His Employment Would Violate California Public Policy

By Susana P. Solano

In Santillan v. USA Waste, Inc. (“USA Waste”), a 53-year old garbage truck driver sued his employer of 32 years for age discrimination and retaliation. Santillan had an exemplary employment record. He was rarely disciplined during his first 30 years at USA Waste. However, a new manager attempted to discipline him six times in an 18-month period. In 2011, USA Waste terminated Santillan for having four accidents in a 12-month period. Pursuant to the parties’ collective bargaining agreement, Santillan filed a grievance to dispute his termination.

Following a public outcry by the residents who live in the areas Santillan serviced, USA Waste agreed to reinstate Santillan’s employment if he dismissed the grievance and passed “e-Verify,” among other conditions. Santillan was unable to provide documentation of his eligibility to work in the U.S. within three days of his reinstatement. As a result, USA Waste terminated him a second time. The lawsuit ensued. USA Waste moved for summary judgment, which the district court granted. In a published opinion, a unanimous panel of the Ninth Circuit reversed the ruling.

Unlike the district court, the Court of Appeals held that Santillan established the elements of age discrimination and retaliation. His testimony that he was one of five older Spanish-speaking employees fired or suspended by the new manager, and the potential 13-year gap between Santillan and his replacement, who also had 21 fewer years of experience, established a motive to discriminate. The fact that USA Waste terminated Santillan shortly after his attorney negotiated his restatement was evidence of protected activity and raised the presumption of retaliation. As such, the burden was on USA Waste to present evidence that it terminated Santillan for a legitimate reason.

The Ninth Circuit held USA Waste did not meet the burden, despite the requirements of the Immigration Reform and Control Act of 1986 (“IRCA”) or Santillan’s agreement to pass “e-Verify.” Two IRCA regulations exempted Santillan from providing the employment eligibility documents. The first was an exemption for reinstated employees pursuant to a settlement. The second was a “grandfather” provision for employees hired before 1986. Moreover, the Court held that requiring Santillan to verify his immigration status as a condition to his reinstatement would violate California public policy. Labor Code section 1171.5 provides that all remedies available under state law, except as prohibited by federal law, are available to all individuals regardless of immigration status. Federal law did not prohibit Santillan’s reinstatement because it was a result of a settlement agreement. The Court agreed with other courts that immigration status is irrelevant in the enforcement of California labor and employment laws.

The employer’s decision to terminate a 53-year old employee with a commendable employment history was risky. Employers should consult with an employment law attorney before executing a termination plan against long-term employees, and verify with counsel that their human resources practices comply with the law.