Allison J. Hartnett

Allison J. Hartnett Associate

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U.S. Immigration Laws Not Enough To Support Termination Of Employee

In a recent decision by the 9th Circuit Court of Appeals, the Court held an employer could not rely on U.S. Immigration laws to support their decision to terminate an employee. Santillan v. USA Waste, No. 15-55238 (9th Cir. 2017).

Santillan was employed by USA Waste as a residential garbage truck driver, a position he had held for 32 years. During his first 30 years, Santillan rarely was disciplined and was loved by the community he served. In 2009, the employer assigned Santillan to a new route manager, after which he was disciplined six times in one and a half years. In December of 2011, USA Waste terminated Santillan as a result of four accidents in a 12-month period and replaced him with a man thirteen years younger. After public outcry from the homeowners he formerly serviced and the filing of a grievance, USA Waste agreed to reinstate Santillan if he passed, among other things, an “E-verify.” However, when Santillan failed to produce a work authorization number with an expiration date after three days, once again he was terminated. Following his termination, Santillan brought a wrongful termination suit for age discrimination.

As with any discrimination claim, USA Waste had to rebut the presumption of unlawful age discrimination by producing a legitimate reason for Santillan’s termination. The Court held USA Waste’s reason for terminating Santillan – his failure to provide proof of his legal right to work in the United States – was not legitimate as it could not rely on the Immigration Control and Reform Act of 1986 (“IRCA”) to support the discharge.

First, the Court held IRCA exempted Santillan from proof of employment eligibility. IRCA requires employers to review certain documents at the hiring stage to confirm that new employees hired after November 6, 1986 are authorized to work in the United States. Only those documents specified by law may be reviewed and the employer may not seek more or different documents than those specified by IRCA. The Court found that Santillan was exempt under the law as he was not a new employee, but instead merely was being reinstated to his former position after a disciplinary suspension for wrongful termination. Second, Santillan originally had been hired in 1979; therefore, he was grandfathered into the provision that requires only those employees hired after November 7, 1986 to provide employment eligibility verification.

Second, the Court found that making Santillan’s reinstatement contingent upon proof of employment eligibility would violate California public policy. Santillan’s settlement agreement following resolution of his grievance contained a provision that required he pass “E-verify.” A California statute provides that “all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed in this state.” The Court held the statute “leaves no room for doubt about this state’s public policy with regard to irrelevance of immigration status in enforcement of state labor, employment, civil rights and employee housing laws.” Therefore, the Court held that USA Waste could not make Santillan’s reinstatement remedy contingent upon verification of his immigration status.

Employers are advised to make sure they adhere to all requirements of IRCA when verifying identity and employment eligibility. Failure to do so can result in a violation not only of IRCA, but also other employment statutes when improper reliance on the law’s requirements results in an adverse employment action.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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