Friday, June 27, 2014
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S.C. Says Undocumented Workers May Sue Under FEHA
By KENNETH OFGANG, Staff Writer
Aliens who lack the legal right to work in the United States may sue for violation of the Fair Employment and Housing Act and other labor laws, although their status may limit their remedies, the California Supreme Court ruled yesterday.
The court reversed lower court rulings that threw out Vicente Salas’ claims for disability discrimination. But it held that Salas’ recovery may not include compensation for wages he would have earned after Sierra Chemical Co. learned that he had used false documentation to get hired.
When Sierra failed to rehire Salas after he took time off following a workplace injury, Salas sued the company for failure to hire based upon his disability and in retaliation for his filing of a workers’ compensation claim. Sierra sought dismissal of Salas’ lawsuit based upon its discovery that Salas used someone else’s Social Security number to obtain employment.
In 2009, San Joaquin Superior Court Judge Elizabeth Humphries granted the employer’s motion for summary judgment under the after-acquired-evidence and unclean-hands doctrines. The after-acquired evidence doctrine, under some circumstances, bars a worker who was terminated, or not hired, for an unlawful reason from recovering damages if the employer could have lawfully terminated or refused to hire the plaintiff based on facts that it first learned after the unlawful termination or refusal to hire.
The Third District Court of Appeal affirmed, but retired Justice Joyce L. Kennard, who wrote yesterday’s majority opinion while sitting on assignment, said neither of the doctrines cited by the lower courts is a complete defense under the circumstances.
Preemption Argument Rejected
Kennard rejected the employer’s argument that in the case of an undocumented worker, the FEHA is preempted by the federal Immigration Reform and Control Act of 1986, or IRCA.
“[W]e conclude that the 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 justice wrote.
Nor, she added, does IRCA preempt Senate Bill 1818, enacted in 2002, which provides:
“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 who have applied for employment, or who are or who have been employed, in this state.”
Federal Case Distinguished
The justice distinguished Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, in which the court cited IRCA and held that National Labor Relations Board erred in granting a backpay remedy to an employee it found had been targeted for layoff because of union activities.
It said that the NLRB could not “award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud.”
But Kennard said the federal case “did not decide any issue regarding federal preemption of state law but instead addressed federal immigration law’s impact on a federal agency’s authority to award a remedy for a violation of federal law,” while Salas was seeking to enforce a state law through a private suit.
The only state laws that are expressly preempted IRCA, the jurist noted, are those that impose sanctions on employers. Nor can it be said that Congress intended for federal law to completely occupy the field of immigration regulation or employment law, or that allowing undocumented aliens the protection of state labor law is contrary to the manifest intent of Congress or frustrates the purpose of federal law, at least with respect to the period prior to the employer’s discovery of the worker’s status.
But, she went on to say, an employee generally should not be allowed to recover compensation for wages that were lost after the employer discovered lawful grounds on which the plaintiff could have been lawfully terminated or turned down for a job. This is consistent with federal anti-discrimination law, Kennard explained.
“The relative equities will vary from case to case, depending on the nature and consequences of any wrongdoing on either side, a circumstance that counsels against rigidity in fashioning appropriate remedies in those actions where an employer relies on after-acquired evidence to defeat an employee’s FEHA claims,” the justice said.
Unclean Hands
As for unclean hands, Kennard noted it is an equitable defense that “may not…be used to wholly defeat a claim based on a public policy expressed by the Legislature in a statute.” The trial judge, she said, may consider it as a factor in determining remedies.
Kennard was joined by Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Kathryn M. Werdegar, and Goodwin Liu.
Justice Marvin Baxter, joined by Justice Ming Chin, concurred in part and reversed in part.
“In my view, a state law rule that allows any recovery of post-termination lost wages by an employment-ineligible alien who sought or procured the job by submitting fraudulent eligibility documents, in direct violation of federal law, is foreclosed by the United States Supreme Court’s definitive interpretation of federal immigration policy as set forth in” IRCA, Baxter wrote. He nonetheless agreed that Sierra was not entitled to summary judgment, saying the record did not definitively establish that Salas was barred from employment as an undocumented alien, and that even if he was, he might have the right to a nonwage, equitable remedy under the FEHA.
The case is Salas v. Sierra Chemical Co., 14 S.O.S. 3235.
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