Rights — continued from Previous Page
statutes that codified the irrelevance of immigration status to the rights and reme- dies available to workers under state employment and other civil laws. These laws declare that: All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individu- als regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.
(
Civ.Code, § 3339(a);
Gov.Code § 7285(a); Lab. Code § 1171.5(a)) Thus, in California, immigrant work-
ers, regardless of their status, are covered by the same civil, labor, and employment laws that apply to the other 73 percent of the population. As explained in Hernandez v. Paicius (2003) 109 Cal.App.4th 452, “These statutes leave no room to doubt about the state’s public policy with regard to the irrelevance of immigration status in the enforcement of state labor, employ- ment, civil rights and employee housing laws.” Id. at 460. Additional authority for this proposition can be found in the fol- lowing key cases: • Farmer Bros. Coffee v. Workers Comp. Appeals Board (2005) 133 Cal.App.4th 533 (holding that immigration status is irrele- vant to liability and damages in workers’ compensation cases) • Reyes v. Van Elk, Ltd. (2007) 148 Cal.App.4th 604 (holding immigration status irrelevant to claims for unpaid pre- vailing wages under Labor Code and that California statutes listed above are not preempted by IRCA) • Incalza v. Fendi North America, Inc. (9th Cir. 2007) 479 F.3d 1005 (holding that “employer sanctions” provision of IRCA does not preempt California’s wrongful termination law, and that IRCA does not bar employers from granting workers unpaid leave to resolve employment authorization problems)
Laying the foundation for effective advocacy
Regrettably, many employers turn a
blind eye to immigration status during the hiring process; their aim is to
98— The Advocate Magazine APRIL 2011
assemble a workforce that is both cheap to employ and that minimizes their risk of being reported for violations of statu- tory rights. Therefore, employers have a perverse incentive to ignore immigration laws at the time of hiring but insist upon their enforcement when their employees complain.
(Rivera v. Nibco (9th Cir. 2004) 364 F.3d 1057, 1072 (emphasis added).) Despite the laws outlined above,
plaintiffs’ attorneys should not turn a blind eye to their clients’ immigration sta- tus based on the hope or expectation that it will never be an issue in the course of litigation. I have heard one prominent plaintiff’s attorney state that, to demon- strate to defendants how confident he is that plaintiffs’ immigration status is a non- issue, his firm has a practice of deliberate- ly not asking clients about their immigra- tion status. This attorney explained that by not knowing it himself, he feels that much more justified and sincere in argu- ing that his clients’ immigration status is irrelevant and should not be subject to discovery. While I agree that we should push
just as hard for application of the public policy about the irrelevance of plaintiffs’ immigration status when our clients are legally authorized as we do when they are not (otherwise, our vociferous advocacy merely signals to defendants that our client has something to hide), I would not recommend adopting this attorney’s “don’t ask, don’t tell” approach for a cou- ple of reasons: First, it is very important for attorneys
to have some basic but vital information about their clients’ immigration status in order to anticipate the types of issues that may arise in each case and protect clients from potential harms, including immigra- tion-related retaliation. This information not only will enable you to better advise immigrant clients about their legal rights, but also to evaluate and discuss with them the potential ramifications of deciding to pursue certain types of relief – such as rein- statement, front pay, or future wage loss. Additionally, understanding your
client’s immigration status will help you determine how to strategize, prepare, and
plead her case while fulfilling the ethical duty to ensure that you do not inadver- tently create negative consequences for your client by how you litigate her claims. These potential negative consequences include placing the client (or members of the client’s family) at risk of being detained or deported, or of impairing the client’s ability to regularize her status in the future, by allowing information relat- ing to her immigration status to be dis- closed or made part of the public record. It is important to remember that all noncitizens – whether they are here law- fully or unlawfully – can still be subjected to removal or deportation proceedings if they violate certain criminal laws, fail to maintain their immigration status, engage in marriage fraud, or engage in docu- ment fraud.10 So, how should you go about obtain-
ing information about your client’s immi- gration status? And what information should you be asking for, anyway? To begin with, as with any attorney-
client relationship, there will be a period during which your relationship with immi- grant clients must be developed and strengthened, with particular attention being paid to mediating any differences in race, class, power, language, or culture. In order to build a solid foundation in this respect, it is critical that you use quali- fied interpreters in cases where you and your client are not proficient in the same language, or wherever you are unsure whether a client’s limited English profi- ciency, although sufficient for everyday purposes, comfortably encompasses legal terms or concepts. Using qualified inter- preters not only will make your communi- cations with clients mutually comprehen- sible and accurate, it will make more accessible and demystify the legal process so that your client can feel enabled and participatory in helping to move her claims forward. Unless it is unavoidable, do not use
your client’s family members, friends, or co-workers as interpreters. Aside from a lack of familiarity with their interpretation skills, your client also may be reluctant to speak freely about certain aspects of her treatment at work with family or friends
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