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Requiring Employees to Prove Eligibility to Work in the U.S. Can Lead to Liability

Posted in Labor Law, Retaliation and Wrongful Termination, Wage & Hour

As the national controversy continues to swirl around immigration issues, a federal appellate court this week faulted an employer for demanding that an employee provide information to prove “‘legal right to work in the United States … as required by the Immigration Control and Reform Act of 1986.’”  The U.S. Circuit Court of Appeals for the Ninth Circuit (“Ninth Circuit”) ruled in Santillan v. USA Waste of California, Inc., Case No. No. 15-55238, that Gilberto Santillan — a 53-year-old, Spanish-speaking garbage truck driver — did not have to “provide proof of employment eligibility.”

The appellate court said that was so because Santillan, who had worked for the employer for 32 years, had been fired and then reinstated shortly before his employer required him to provide such proof.  It may come as a surprise to employers to learn that an employee who is fired and then reinstated may not have to prove his or her eligibility to work in the U.S. upon reinstatement, but that is the case under federal law. Brenden-Begley-05_web

The Ninth Circuit explained that a federal regulation, 8 C.F.R. § 274a.2(b)(1)(viii)(A)(5), exempted Santillan from the requirement.  He was exempt under that regulation because he was “‘continuing in his employment … after disciplinary suspension for wrongful termination’” that had been “‘resolved through reinstatement or settlement.’”

Since the employer had hired Santillan in 1979, the Ninth Circuit said there was yet another reason why he was “exempt from the IRCA employment eligibility verification requirement.”  The court pointed out that federal law “exempts employees hired before November 7, 1986, from the employment eligibility verification requirements applicable at the hiring stage.”

Santillan’s Long Employment History and Notoriety

In his lawsuit claiming wrongful termination on account of his age and a retaliatory animus, Santillan alleged that he was a model employee with no record of discipline for 30 years until the employer hired a new route manager in 2009.  Thereafter, according to the opinion, the new route manager “attempted to discipline Santillan six times” over the course of 18 months.  This led to the initial termination of Santillan’s employment in December 2011.

The Ninth Circuit seemed to be suspicious of the timing of the termination.  Indeed, it observed that, when the employer’s garbage-collection contract was up for renewal just nine months before Santillan was fired, the employer specifically highlighted Santillan’s exemplary service to the community in its presentation to the City Council.

It turns out that Santillan also was a bit of a celebrity with customers on his route.  In fact, the Ninth Circuit’s opinion noted that the employer “received hundreds of letters from Manhattan Beach homeowners who live in the area served by Santillan” demanding that his employment be reinstated.

The opinion said that the homeowners reminded the employer in those letters that it would not have been operating in the area but for Santillan being employed there.  Those letters reportedly remarked that the employer had “succeeded in securing the renewal of its important garbage collection contract … because the homeowners came out in droves to support Santillan, their ‘First Class’ residential garbage truck driver.”

According to the opinion, one homeowner even “made it a point to introduce her sons to Santillan because he ‘works hard, and has a beautiful spirit and attitude … and integrity and a radiant personality.”  The opinion also echoed a story ran by a local newspaper about the campaign to have Santillan reinstated, which reported that a homeowner’s son “dressed up as Santillan for Halloween because he considers Santillan ‘a hero.’”

Santillan’s Reinstatement and Lawsuit

In May 2012, the employer and Santillan entered a settlement agreement to reinstate the popular driver “if he passed the California Department of Transportation drug test and physical exam, a criminal background check, and ‘eVerify’” and dismissed the union grievance challenging his termination.  The opinion recounted that “Santillan successfully completed the California Department of Transportation drug test, the physical exam, and the criminal background check,” but was unable to provide more than “his driver’s license and social security card to complete the Form I-9” when he returned to work in July 2012.

Specifically, he could not produce the “expiration date” to correspond with his “work authorization number.”  Six days later, in July 2012, the employer informed Santillan that it “was firing him because he did not provide ‘proof of [his] legal right to work in the United States.’”  Santillan thereafter sued the employer in the U.S. District Court for the Central District of California, alleging age discrimination and retaliation.

The federal district court granted summary judgment to the employer, finding that Santillan did not provide sufficient evidence to permit an inference that his age was the reason for the termination.  The trial court also ruled “that Santillan’s failure to provide the documentation that [the employer] demanded” was a valid, “non-retaliatory reason for the July 2012 termination.”  On appeal, the Ninth Circuit held that Santillan had tendered adequate evidence and that his failure to provide the demanded documentation was not a valid reason to terminate his employment.

The Takeaway

The take away from this is not that employers should stop requiring proof of eligibility to work in the U.S. from new hires.  Instead, employers should exercise caution when reinstating employees — especially those who are popular with customers and capable of generating such media attention.  Employers also would be well advised to consult with legal counsel to determine what terms are appropriate as conditions for reinstating any terminated employee.