CACI 2732 Retaliatory Unfair Immigration-Related Practice—Essential Factual Elements (Lab. Code, § 1019)
California Civil Jury Instructions CACI
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]
[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];]
[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];]
[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]
[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;]
[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;]
[filed or threatened to file a false [police report/report or complaint with a state or local agency];]
[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 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.