Sacramento, CAMoises is an illegal immigrant who has been working in California for many years. According to Moises, his former employer violated a number of California labor laws, including overtime and wrongful termination. As an illegal, does Moises have the right to file a California labor lawsuit? Employment attorney David Yeremian weighs in…
Moises worked as a cook at Mel’s Diner for six years before it was sold six months ago. The new owner asked him to continue working in the same position at the same rate: $12 per hour, 40 hours per week.
First California labor law violation: Moises says he typically worked 50 hours per week but he never got overtime pay.
“I asked the new boss about California overtime compensation but he told me they never pay anyone overtime,” says Moises. Other employees worked overtime but they didn’t get paid either, so I wasn’t singled out. The previous owner never scheduled us for more than 40 hours per week, but sometimes we would work an extra few hours and always get paid time and a half.”
Moises had a minor “incident” that triggered his termination. “One day I had a problem,” he says. “I was pulled over by the police and jailed overnight because I forgot my driver’s license - I had left it at home. My friend called my boss (I tried to call him first from jail) and told him what happened. The next day I showed up at work and he said, ‘I don’t need you anymore,’ and said I have too many problems. But I think it was because I asked for overtime. They said they have too many cooks but I know they don’t have enough cooks.”
Third California labor law violation: Not receiving last paycheck in a timely manner.
“I was fired one month ago and I still haven’t received this last paycheck,” he says. Moises went back to Mexico but his wife and two daughters, ages seven and three (they were born in the US), stayed in the US. “I sent my wife to the restaurant to get my check. My boss said he wouldn’t give it to her, using the excuse that he doesn’t know her, but that is not true.”
Moises, age 28, has been working illegally in California for the past 10 years. He is in the process of getting his green card. His wife is a US resident and she has applied for citizenship. “I gave my boss a fake social security number; it is a number I have used for the entire time I was in the US. I never had a problem with it. I bought it from someone on the street in Mexico for $80.
“My boss has taken advantage of me because I worked illegally,” Moises adds. “Everyone knows there are a lot of illegals in the US; illegals who want to move here to work and get a better life. I hope to return to the US when I am legal; right now I am trying to fix my status in the US. My family can visit me here but I don’t think I can go to the US for about a year. Meanwhile, I have a construction job here in Mexico City, but I would rather be a cook in California.”
LawyersandSettlements (LAS):
Do the above labor law violations apply to illegal immigrants, i.e., overtime violation, wrongful termination (not even sure if wrongful termination applies to any employee because California is an “at will” state) and not getting the last paycheck on the day of termination?
Attorney David Yeremian (DY):
Yes. According to the CA website of the California Department of Industrial Relations, “All California workers - whether or not they are legally authorized to work in the United States - are protected by state laws regulating wages and working conditions.” The website states that all California workers have the right:
• To receive a minimum wage of $8.00 per hour
• To earn overtime pay - with some exceptions - after working more than 8 hours/day or more than 40 hours/week
• To file wage claims with the state labor commissioner if they believe their employer has violated state wage laws
• To file workplace safety and health complaints with Cal/OSHA, the state’s workplace safety and health program
• To work in an environment free from retaliation for exercising their rights
LAS: Can Moises get a letter from a notary public stating that his wife can receive his last paycheck?
DY: A notarized authorization letter may work; but Moises’ employer is not obligated to give his paycheck to anyone other than him.
LAS: Is the employer in violation of CA labor law for hiring Moises with a fake security card?
DY: The Immigration Reform and Control Act, a federal law, makes it illegal for an employer to knowingly hire undocumented aliens.
LAS: Moises has a fake social security card. What rights does he have re: getting overtime and his last paycheck? Moises says he paid taxes from his pay stubs.
DY: See response to Question 1 above.
LAS: If Moises paid taxes, doesn’t he have a right to get his last paycheck?
DY: Yes, Moises has a right to get his last paycheck. In fact, pursuant to California Labor Code Section 201, an employer who discharges an employee must immediately pay all compensation due and owing.
David Yeremian is an experienced litigator and business counselor, and co-founder of Orshansky & Yeremian LLP. He has worked on a wide variety of litigation matters including employment. The employment discrimination lawyers in Los Angeles provide free consultations to discuss your case fully.