Wage Law

Can an employer who illegally hires an undocumented alien and then refuses to pay wages due to that employee raise the worker's immigration status as a defense to nonpayment of wages? A Superior Court said yes, but the Second District Court of Appeal says "No."

In Reyes v. Van Elk, four workers hired by a public works contractor filed suit alleging failure to pay prevailing wages (Labor Code §§ 1720-1861) on a public work of improvement. The Superior Court granted summary judgment in favor of defendants on the grounds undocumented workers were precluded by the federal Immigration Reform and Control Act of 1986 (“the IRCA”) (8 U.S.C. §§ 1101 et. seq.) and Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137 from asserting such claims. The Superior Court also found the Supremacy Clause preempted California statutes declaring immigration status irrelevant to claims under California’s labor, employment, civil rights and employee housing laws (e.g., Labor Code § 1171.5, Civil Code § 3339, Government Code § 7285). The plaintiffs argued that the IRCA and Hoffman do not preclude undocumented workers from asserting such claims, and that the California statutes are not preempted. On appeal, the trial court was reversed, and the trial court was ordered to enter an order denying the motion for summary judgment.

The court did not express an opinion about whether the wage claim would survive a showing that the undocumented workers submitted false work authorization documents to the employer. However, it did not that “Earned but unpaid salary or wages are vested property rights.” (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1080.) And noncitizens are guaranteed the same property rights as citizens. (Cal. Const, art. I, § 20.) It is well established that California’s prevailing wage law is a minimum wage law. (Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 778.) The duty to pay prevailing wages is mandated by statute and is enforceable independent of an express contractual agreement. (§§ 1771, 1774-1775.) Thus, while the obligation to pay prevailing wages arises from an employment relationship which gives rise to contractual obligations and claims, the duty to pay the prevailing wage is statutory. (§§ 1771, 1774.) For these reasons we conclude that, because the prevailing wage law is a minimum wage law mandated by statute and serves important public policy goals, section 1194 provides an employee with a private statutory right to recover unpaid prevailing wages from an employer who fails to pay that minimum wage. (Id., at p. 779.)

Moreover, Hoffman only held that allowing the National Labor Relations Board (“NLRB”) “to award backpay [wages that would have been earned but for an unlawful firing] to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA." It did not speak to payment of wages already earned by the actual provision of labor. In Patel v. Quality Inn South (11th Cir. 1988) 846 F.2d. 700, 704), the 11th Circuit held the IRCA did not purport to limit remedies for unpaid wages available to undocumented aliens under the Fair Labor Standards Act (“FLSA”) reasoning that if the FLSA did not cover undocumented aliens, employers would have an incentive to hire them. The court concluded the legislative history of the IRCA “strongly suggest[ed]” Congress believed undocumented workers would continue to be protected by state and federal wage laws. (Ibid.) The also court reasoned that minimum wage laws supported the IRCA policy of reducing illegal immigration because such laws offset the most “attractive feature” of such workers -- their willingness to work for less than the minimum wage. Other courts have also agreed that the IRCA did not foreclose all remedies for undocumented workers under FLSA, NLRA or other federal labor statutes. (See e.g., cases cited in Patel, supra, 846 F.2d at p. 703 & p. 703, fn. 4; Mester Mfg. Co. v. I.N.S. (9th Cir. 1989) 879 F.2d 561, 567; Contreras v. Corinthian Vigor Ins. Brokerage, Inc. (N.D.Cal. 1998) 25 F.Supp.2d 1053, 1056.)

The Court also found no preemption intended by the IRCA:

Because legislation providing for the payment of prevailing wages comes under the historic police powers of the state, the presumption is that legislation is not superseded by the IRCA. Defendants do not cite any provision in the IRCA preempting state wage and hour legislation. The only specific preemption provision prohibits state or local law from imposing civil or criminal sanctions upon those who employ unauthorized aliens. (8 U.S.C. § 1324a(h)(2).) That provision is irrelevant to the wage claims asserted by plaintiffs. Thus, the IRCA does not expressly preempt state wage laws.

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