In a California employment case, a defendant generally can’t ask about the plaintiff’s immigration status. Labor Code section 1171.5(b) says status “is irrelevant to the issue of liability,” and that no inquiry is allowed in discovery “unless the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.” The one damages limit employers have, from the Supreme Court of California’s Salas decision, rarely justifies the risk of asking.
What do the statutes say?
Two parallel provisions set the rule. Section 1171.5(a) says “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.” Government Code section 7285 uses nearly identical words and applies them to “state labor, employment, civil rights, consumer protection, and housing laws.”
So the bar reaches wage and hour claims, FEHA discrimination claims, and retaliation claims alike. Both sections say they are “declaratory of existing law.”
What about personal injury claims tied to work?
A separate statute covers them. Evidence Code section 351.2(a) says “In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.”
Subdivision (b) says the section doesn’t affect the standards in Labor Code section 1171.5 and Government Code section 7285. In employment cases, those two statutes and their clear-and-convincing exception remain the governing rule.
What did Salas v. Sierra Chemical hold?
That federal law limits one category of damages. In Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, the Supreme Court of California held that FEHA “is generally not preempted by federal immigration law, but that federal preemption does bar an award of lost pay damages under the FEHA for any period of time after an employer’s discovery of the employee’s ineligibility under federal law to work in the United States.”
The court also rejected the Court of Appeal’s holdings that the after-acquired evidence and unclean hands doctrines were complete defenses to the worker’s FEHA claim. Lost pay for the period before the employer’s discovery remains recoverable, as do nonwage remedies.
The opinion was decided by the state’s highest court and remains good law. Its practical reach is narrow: it limits post-discovery lost wages, and only if ineligibility is actually established.
Can the employer use Salas to justify discovery?
Rarely, and carefully. The statutes allow an inquiry only on clear and convincing evidence that it’s “necessary in order to comply with federal immigration law.” Trying to cut off a lost-pay claim isn’t the same as complying with immigration law. A defendant that serves interrogatories about work authorization, or asks about it at deposition, should expect a protective order motion and possibly a sanctions request.
The risk is larger than a discovery fight. Labor Code section 244(b) says that reporting or threatening to report a worker’s “suspected citizenship or immigration status” to an agency, because the worker exercised a right under the Labor Code, Government Code, or Civil Code, “constitutes an adverse action.” Questions about status during a lawsuit can be cast as that kind of threat.
What can an employer still use?
Its own records, carefully. An employer that discovered during employment that a worker wasn’t authorized, and acted on that, has a different record than one looking for the issue after a lawsuit is filed. Form I-9 records the employer already holds are subject to federal limits on their use, and counsel should decide whether and how any such record is relevant.
Most employment cases are better defended on the merits: the legitimate reason for the decision, the wage records, and the plaintiff’s own conduct. Immigration status is almost never the best ground to fight on.
Immigration status rules at a glance
| Issue | Rule | Source |
|---|---|---|
| Liability under state employment law | Status irrelevant | Lab. Code 1171.5(b); Gov. Code 7285(b) |
| Discovery in employment cases | Barred absent clear and convincing showing | Lab. Code 1171.5(b) |
| Personal injury and wrongful death | Discovery and evidence barred | Evid. Code 351.2 |
| FEHA lost pay after employer’s discovery | Barred by federal preemption | Salas (2014) 59 Cal.4th 407 |
| Reporting status after protected activity | Adverse action | Lab. Code 244(b) |
Before raising immigration status in a case
- Preserve the personnel file and any work authorization records already in the company’s possession, and don’t add to them in response to the lawsuit.
- Calendar the discovery deadlines and any meet-and-confer obligations, and check whether the EPLI carrier must approve defense strategy changes.
- Identify everyone who knows about the worker’s status, and instruct them not to contact any agency or the worker about it.
- Pull the records showing when, if ever, the company learned of any work authorization problem during employment.
- Talk to counsel before serving any discovery or asking any deposition question that touches status.
The firm’s page on employment litigation defense in California explains how it handles discovery and trial in employment cases.
Immigration status questions from employers
Can we ask for a Social Security number in discovery?
That can be treated as a backdoor status inquiry. Courts handle identifiers differently depending on the purpose, such as tax records or wage loss calculations. Make sure there’s a legitimate, documented reason, and consider whether other records answer the question.
Does Salas help in a wage and hour case?
Salas addressed FEHA lost pay for the period after discovery of ineligibility. Unpaid wages for work already performed are a different remedy. Section 1171.5(a) makes state wage protections available regardless of status.
What if the plaintiff raises status first?
If the plaintiff puts status at issue, for example by claiming lost earnings in a way that depends on future employment, the analysis may shift. Even then, the clear-and-convincing standard and the retaliation risk mean any discovery should be narrow and approved by the court first.
Can reinstatement be ordered for an unauthorized worker?
Section 1171.5(a) carves out “any reinstatement remedy prohibited by federal law.” That’s one of the few places status can matter, and it usually arises at the remedies stage, not in discovery.
If immigration status has come up in your employment case
If your company is defending an employment lawsuit and the plaintiff’s immigration status has surfaced, or someone on your team wants to raise it, a short legal review before any discovery or contact can prevent a new claim. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving discovery disputes over sensitive employee information. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Labor Code sections 244 and 1171.5, Government Code section 7285, and Evidence Code section 351.2. The opinion is Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.