Cal-Peculiarities: How California Employment Law is Different 2022 Edition

128 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com an error in business judgment. Instead, Lucasfilm can only be liable … if the decisions made were motivated by discrimination or retaliation related to [the plaintiff] being pregnant. ” 464 5.16.5 Precluding discriminatory criteria in calculating lost earnings A peculiar 2019 law, though not specifically an employment law, reflects California’s progressive attitude toward tort damages. The law provides that, in personal injury and wrongful death cases, the plaintiff’s damages for lost or impaired earning capacity cannot be reduced from any calculation based on a person’s race, ethnicity, or gender. The new law aims, obviously, to narrow the consequences of observed differences in the pay of groups defined by gender or ethnicit y. 465 5.17 Special Protections for Unauthorized Workers 5.17.1 Plaintiff protections In America generally, the unauthorized work status of plaintiffs can limit their litigation remedies. The U.S. Supreme Court has held that undocumented workers cannot recover back pay for a wrongful termination, because awarding back pay would conflict with federal immigration policy . 466 In California it’s different. California legislation—codified in the Labor Code, the Civil Code, and the Government Code—makes the immigration status of a plaintiff irrelevant to any liability and to the remedies available under California law, except to the extent that federal law prohibits a reinstatement remedy . 467 M oreover, in a proceeding to enforce California law, it is unlawful even to inquire into a person’s immigration status, absent clear and convincing evidence that the inquiry is necessary to comply with federal law . 468 Employers have argued that the federal Immigration Reform and Control Act preempts this California legislation, but California courts have held otherwise. A trial court held that IRCA preempted the claims of undocumented workers suing for unpaid wages under California’s prevailing-wage law, because the plaintiffs, under federal law, could not work lawfully in the United States. But the Court of Appeal reversed, concluding “there is no actual conflict between the IRCA and the prevailing-wage law as the state law is not an obstacle to the accomplishment and execution of the full purposes and objectives of the IRCA. ” 469 T he Court of Appeal reasoned that enforcement of the prevailing wage law “removes a major incentive to hiring undocumented workers. ” 470 And as to the point that allowing wage suits by unauthorized workers would encourage illegal immigration, the Court of Appeal simply doubted “that many illegal aliens come to this country to gain the protection of our labor laws. Rather it is the hope of getting a job—at any wage—that prompts most illegal aliens to cross our borders. ” 471 Another California court has held that an undocumented worker who was injured on the job is entitled to workers’ compensation, notwithstanding the employer’s argument that federal immigration law preempts state labor law protections for undocumented workers . 472 The Ninth Circuit has upheld a $1.1 million dollar jury verdict for an Italian store manager whose Beverly Hills employer dismissed him when his visa expired . 473 T he plaintiff claimed that his dismissal breached a contractual promise to dismiss him only for good cause. The employer contended that it had good cause for dismissal because, under IRCA, an employer cannot “continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment. ” 474 T he Ninth Circuit, while agreeing that compliance with IRCA would be good cause to dismiss, upheld employer liability on the basis that the employer, instead of immediately dismissing the plaintiff, could have granted his request to go on temporary, unpaid leave for a “reasonable period” in order to restore his authorization to work in the United States . 475 Further obstacles to employer reliance on immigration laws as a defense arose during 2014, when the California Supreme Court decided Salas v. Sierra Chemical C o. 476 The plaintiff had sued the defendant for failing to