Last week, in Santillan v. USA Waste of California, the Ninth Circuit Court of Appeals reversed a lower court’s dismissal of this age discrimination case, finding that the employer had not offered a legitimate non-discriminatory reason for terminating the Plaintiff, a 53 year old garbage truck driver with 32 years of service with the Defendant employer. In the last couple years of his employment, Plaintiff – and a few other more experienced drivers – had been written up for various infractions and terminated by a new supervisor. Homeowners in his service area “came out in droves” to support the Plaintiff, who they believed was a first class garbage truck driver and a credit to their community. Plaintiff retained counsel and filed a grievance against the Defendant.
Defendant settled the grievance by offering to reinstate Plaintiff on the condition that he pass a Department of Transportation (DOT) drug test, a physical exam, a criminal background check, and E-Verify. Plaintiff successfully completed the first three, and Defendant’s Human Resources (HR) representative informed Plaintiff he could return to work and then complete his I-9 for E-Verify.
Plaintiff returned and presented his social security card and driver’s license to complete the form I-9. HR demanded Plaintiff’s work authorization number and its expiration date, so Plaintiff gave HR a letter with the authorization number. On the third day, though, HR sent Plaintiff home because he had not provided the expiration date, and the company terminated Plaintiff because he had not provided “proof” of work authorization to fulfill the condition of his reinstatement that he pass E-Verify.
Plaintiff sued for wrongful termination based on age discrimination. In its defense, the employer argued it terminated Plaintiff because he could not provide proof of his legal right to work within the United States as required by the Immigration Reform and Control Act of 1986 (“IRCA”). However, the Ninth Circuit disregarded this defense, finding that Plaintiff could not be required to provide employment eligibility documents because he was continuing his employment after being reinstated, and he was exempted by the IRCA “grandfather” provision because he was hired by the company before November 7, 1986. In light of his exempted status, it was unlawful from the start for the company to make Plaintiff’s reinstatement contingent upon passing E-Verify, and thus this could not qualify as a legitimate non-discriminatory reason for ultimately terminating the Plaintiff.
COUNSEL TO MANAGEMENT:
Here, while the company initially avoided a wrongful termination suit by agreeing to reinstate Plaintiff, it exposed itself to liability by requiring Plaintiff to provide proof of his right to work despite his exempt status and then firing him again based on this improper I-9 practice. Employers should review their hiring practices and Human Resources policies to ensure they are compliant with IRCA and other state and federal immigration and discrimination laws. If you have questions about your company’s I-9 procedures, or have questions about defending age discrimination lawsuits, contact the experts at the Saqui Law Group. Also, be on the lookout for events in the next few months where the Saqui Law Group will present its I-9 in a Nutshell seminar.