California Supreme Court Clarifies Availability of FEHA Remedies for Unauthorized Workers

California law provides protections and remedies to employees who have suffered adverse treatment in the employment context. When an employee obtains employment through the use of fraudulent documents to satisfy federal immigration requirements for work eligibility, however, then certain of those protections cease upon the employer’s discovery of the employee’s ineligibility to work in the United States. That was the basic holding of the California Supreme Court’s recent decision in Salas v. Sierra Chemical Co. (S196568).

The plaintiff in that case sued under the California Fair Employment and Housing Act (FEHA) on the theory that defendant employer failed to accommodate plaintiff’s physical disability and refused to rehire plaintiff in retaliation for plaintiff’s filing a workers’ compensation claim. Defendant moved for summary judgment on the ground that plaintiff’s alleged misuse of a Social Security number not belonging to him to establish plaintiff’s right to work barred plaintiff’s suit because federal law preempted plaintiff’s claims under the FEHA. The trial court denied defendant’s motion for summary judgment. Defendant filed a petition for writ of mandate to the Court of Appeal, which issued an alternative writ. The Court of Appeal invoked the doctrines of unclean hands and after-acquired evidence in reasoning that plaintiff’s alleged misuse of another individual’s Social Security number to gain employment undermined plaintiff’s claims on federal preemption grounds. Thus the Court of Appeal held that those claims should be disposed of adversely to plaintiff. In response to the alternative writ the trial court entered its order granting defendant summary judgment.

Plaintiff filed a petition for review to the California Supreme Court, which reversed and remanded to the trial court for further proceedings. The Supreme Court concluded that (1) federal immigration law does not preempt plaintiff’s rights and remedies under Senate Bill No. 1818, but only to the extent that plaintiff could be entitled to recover lost pay damages prior to the time defendant discovered plaintiff’s ineligibility to work lawfully and (2) the equitable doctrines of unclean hands and after-acquired evidence “are not complete defenses to a worker’s claims under California’s FEHA, although they do affect the availability of remedies.”

Timothy D. Widman is a Immigration Attorney and the owner of the Law Office of Timothy D. Widman, with offices in San Jose and Cupertino.

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