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Sarah R. Bratko, Esq.
Vice President of Advocacy and General Counsel
401-223-1120, ext. 115
New England employers should be aware that people who lack authorization to work in the United States are nonetheless protected under most employment laws, including discrimination and wage-and-hour statutes.
A recent court decision in California illustrates this. In Salas v. Sierra Chemical Co., the California Supreme Court ruled that an employer could be held liable for back wages in connection with a former employee's claims of disability discrimination and retaliation, even though the employee had not been legally authorized to work.
The court relied on a California statute that explicitly extends employment protections to all workers, irrespective of immigration status, and concluded that the state law was not preempted by the federal Immigration Reform and Control Act of 1986, or IRCA, which prohibits employers from employing unauthorized workers.
State and federal courts in New England have likewise permitted unauthorized workers to assert claims under various employment statutes. Thus, employers should take appropriate steps to protect themselves from potential liability for such claims.