32 Trial Lawyer • Summer 2022 Quinn Kuranz By Quinn Kuranz Some of my most rewarding employ- ment discrimination cases are those in which I have represented immigrant workers. Representing these workers can pose additional challenges, including arguments from defendants that immigrants should not be entitled to the same rights and remedies as everyone else. These workers are so appreciative to find someone who can help them get some justice. Ultimately, we need to continue to educate our judges that failing to provide full rights and remedies to these workers merely incentivizes employers to engage in the criminal act of knowingly employing unauthorized workers. One common fact pattern in unauthorized worker discrimination cases occurs when an employer knowingly or negligently hires a worker who is unauthorized to work in the United States, only to fire the employee once they begin to assert statutory rights or claim statutory benefits. Betty was hired to work in a manufacturing plant. When she was hired, Betty provided identification papers. Some of the documents Betty provided were expired. Within three days of hiring, an employer is required to review and verify certain types of documents, which the government deems sufficient to verify work authorization. (See form I-9). Betty’s hiring manager did not obtain the proper documents from Betty within three days of her hire. The hiring manager did not sign the I-9 paperwork. Betty was hired anyway. Betty worked without incident for several years. In talking with coworkers and supervisors, Betty learned it was an open secret the company routinely employed unauthorized workers. One unfortunate day, Betty suffered a workplace injury. She reported the injury to her supervisor, who told her to go back to work. Eventually, Betty could no longer endure the pain and went to her doctor. Her doctor filled out a workers’ compensation claim form and submitted it to the company’s insurer. Betty gave the company a note from her doctor, excusing her fromwork for a month. Betty started getting time-loss checks to cover her lost wages. One week into her recovery, the company called Betty and fired her, stating the company had “discovered” that Betty was not authorized to work in the U.S. As a result of being fired, the company’s insurer also cut off Betty’s time-loss payments. Betty was left without a job, without income and unable to work, all because she suffered a workplace injury and claimed workers’ compensation benefits. Seeking justice Betty’s story is not uncommon. It’s likely for every undocumented worker who does come forward to pursue such a claim against an employer, there are many more who do not come forward. Betty has a right to pursue claims, regardless of whether she is or is not authorized to work. There are two key sections in the Immigration Reform and Control Act (IRCA) that can help Betty’s case. First, it is not criminally unlawful for undocumented workers to seek or engage in unauthorized employment. Arizona v. United States, 5678 US 387, 406 (2012). Second, while it is not criminal for an employee to seek or engage in unauthorized employment, it is still criminal conduct to “obtain employment through fraudulent means.” However, the “information employees submit to indicate UNAUTHORIZED WORKERS IN EMPLOYMENT DISCRIMINATION . . . i t i s not criminal ly unlawful for undocumented workers to seek or engage in unauthorized employment.
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