CACI No. 2732. Retaliatory Unfair Immigration-Related Practice - Essential Factual Elements (Lab. Code, § 1019)

Judicial Council of California Civil Jury Instructions (2020 edition)

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2732.Retaliatory Unfair Immigration-Related Practice - Essential
Factual Elements (Lab. Code, § 1019)
[Name of plaintiff] claims that [name of defendant][specify unfair
immigration-related practice, e.g., threatened to report [him/her/nonbinary
pronoun] to immigration authorities] in retaliation for [his/her/nonbinary
pronoun][specify right, e.g., making a claim for minimum wage]. In order
to establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff]
1. [in good faith filed a complaint or informed someone about [name
of defendant]’s alleged [specify violation of Labor Code or local
ordinance, e.g., failure to pay the minimum wage to its employees];]
1. [or]
1. [sought information regarding whether or not [name of defendant]
was in compliance with [specify requirement under Labor Code or
local ordinance, e.g., minimum wage requirements];]
1. [or]
1. [informed someone of that person’s potential rights and remedies
for [name of defendant]’s alleged [specify violation of Labor Code or
local ordinance, e.g., failure to pay the minimum wage to its
employees] and assisted [him/her/nonbinary pronoun] in asserting
those rights;]
2. That [name of defendant]
2. [requested more or different documents than those that are
required by federal immigration law, or refused to honor
documents that on their face reasonably appeared to be genuine;]
2. [or]
2. [used the federal E-Verify system to check the employment
authorization status of [name of plaintiff] at a time or in a manner
not required or authorized by federal immigration law;]
2. [or]
2. [filed or threatened to file a false [police report/report or
complaint with a state or local agency];]
2. [or]
2. [contacted or threatened to contact immigration authorities;]
3. That [name of defendant]’s conduct was for the purpose of, or
with the intent of, retaliating against [name of plaintiff] for
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exercising [his/her/nonbinary pronoun] legally protected rights;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[If you find that [name of defendant] acted as described in element 2
fewer than 90 days after [name of plaintiff] acted as described in element
1, you may but are not required to conclude, without further evidence,
that [name of defendant] acted with a retaliatory purpose and intent.]
New December 2014; Revised May 2020
Directions for Use
One who is the victim of an “unfair immigration-related practice” as defined, or that
person’s representative, may bring a civil action for equitable relief and any
damages or penalties. (Lab. Code, § 1019(a).) While most commonly this claim
would be brought by an employee against an employer, the statute prohibits unfair
immigration-related practices by “an employer or any other person” against “an
employee or other person.” (Lab. Code, § 1019(d)(1).) Therefore, the statute does
not require an employment relationship between the parties.
Engaging in an unfair immigration-related practice against a person within 90 days
of the person’s exercise of protected rights raises a rebuttable presumption that the
defendant did so in retaliation for the plaintiff’s exercise of those rights. (Lab. Code,
§ 1019(c).) The statute does not specify whether the presumption is one affecting
only the burden of producing evidence (see Evid. Code, §§ 603, 604) or one
affecting the burden of proof. (See Evid. Code, § 605.) If the statute implements a
public policy against the use of immigration-related coercion to deter workers from
exercising their rights under the Labor Code, its presumption would affect the
burden of proof. (See Evid. Code, § 605.) The last optional paragraph of the
instruction may then be given if applicable on its facts. If, however, the presumption
affects only the burden of producing evidence, it ceases to exist when the defendant
produces evidence rebutting the presumption, such as a reason for the action other
than retaliation. (Evid. Code, § 604.) In that case, the last paragraph would not be
given.
Sources and Authority
• Retaliatory Use of Immigration-Related Practices. Labor Code section 1019.
• Unlawful Employment of Aliens. 8 United States Code section 1324a.
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 359
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-E, California
Labor Code, ¶ 7:1510 et seq. (The Rutter Group)
LABOR CODE ACTIONS CACI No. 2732
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4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
11 California Forms or Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][b] (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 (Matthew Bender)
2733-2739. Reserved for Future Use
CACI No. 2732 LABOR CODE ACTIONS
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