Can my employer treat me differently because of DACA?

This is general information, not legal advice.

What does California law say?

California's civil rights rules (2 CCR 11028) say an employer may not discriminate against a worker or job applicant because of immigration status, unless the employer can clearly show that federal immigration law requires it. Discrimination based on national origin, meaning where you or your family come from, your accent or your ancestry, is also illegal.

These rules cover employers with 5 or more workers. Harassment is illegal at any size workplace (Civil Rights Department).

Examples that may be illegal in California:

• Paying you less, or giving you worse shifts, because you have DACA.
• Passing you over for a promotion because your work permit is "temporary."
• A job post that says "citizens and green card holders only," when no federal law requires it.
• Jokes, slurs or threats about your status or where you are from.

What about federal law?

Federal law also bans national origin discrimination and unfair treatment with work papers. But it protects a short list of people from citizenship status discrimination: U.S. citizens and nationals, refugees, asylees and some green card holders (8 U.S.C. 1324b(a)(3); DOJ). DACA recipients are not on that list. That is why many DACA complaints about "citizens only" policies go to the California Civil Rights Department, not the federal government. A clinic can help you pick the right place.

What can my employer ask for?

Your employer must follow federal rules about work papers (Form I-9). That is where "different" treatment can be legal:

• They must check your papers again no later than the day your work permit ends. This is called reverification. They do this for everyone with a work permit that ends, not just you.
• They may not keep you working without valid papers. DACA work permits get no automatic extension, and a receipt notice is not enough.

Here is what they may not do:

• Ask for more papers, or a certain kind, than the law requires.
• Reject papers that look real.
• Reject your papers just because they will expire soon, or treat you differently in the paperwork process because of your status or where you are from.
• Fire or punish you for updating your name, Social Security number or work permit. California law protects you here.
• Threaten to call immigration because you complained or used your rights.

Are there real exceptions?

Yes, a few. Federal law allows a citizenship requirement when a law, regulation or executive order requires it, or when a federal, state or local government contract requires it (8 U.S.C. 1324b(a)(2)(C)). California's rule has a similar exception for what federal immigration law requires.

One clear example: most regular federal government jobs (the "competitive service") are open only to U.S. citizens and nationals, with narrow exceptions (5 CFR 7.3). Some government contractor jobs carry similar rules from the contract.

A private store, restaurant, office or warehouse usually has no such rule. If an employer says a law requires citizenship, ask which law, in writing. Then show the answer to a clinic.

Example (fictional). Maya has DACA and a valid work permit. She applies to be a shift lead at a grocery store in San Jose. The manager says, "We only promote citizens and green card holders." She writes down the date and his words and saves the job post. A clinic tells her no law requires citizenship for that job, and she files with the Civil Rights Department within the 3 years she has. Maya's case is made up; what happens in a real complaint depends on the facts.

What should I do if this is happening to me?

1. Write it down. Dates, names, what was said, and who saw it. Save texts, emails and job posts.
2. Keep copies of your papers and any I-9 related notices.
3. Talk to a free clinic before you quit or sign anything.
4. File on time. Civil Rights Department complaints usually within 3 years. Retaliation complaints with the Labor Commissioner usually within 1 year.

The Civil Rights Department says it does not ask about immigration status. California law also bars questions about your status in these cases, with narrow exceptions.

Who can help?

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• California Civil Rights Department: 800-884-1684, TTY 800-700-2320
• DOJ Immigrant and Employee Rights Section: worker hotline 1-800-255-7688, TTY 711, Monday to Friday, 9 a.m. to 5 p.m. Eastern
• California Labor Commissioner: 833-526-4636
• Legal Aid at Work, Workers' Rights Clinic: East Palo Alto line (415) 404-9093. Free, with income limits.
• Community Legal Services in East Palo Alto, for San Mateo and Santa Clara county residents with low income: (650) 326-6440

Related questions

• What workplace rights do DACA recipients have?
• What papers your employer can ask for, and when they can recheck them
• How to file a discrimination complaint in California

You earned your place at work. Being treated fairly is not a favor. It is your right.