Unlawfully Employed Worker Denied Right to Seek Remedy

Friday, August 12, 2011 | 0

By Richard M. "Jake" Jacobsmeyer
Shaw, Jacobsmeyer, Crain & Claffey

In a published opinion, the California 3rd District Court of Appeal has held an employee who alleged discrimination by his employer on the basis of a work related injury and or disability was not entitled to maintain the cause of action based on the “after acquired evidence” which showed the employee was not subject to rehire based on immigration status. The case is Salas v Sierra Pacific.
  
Vicente Salas had been employed by Sierra Chemical for several years. When hired and on several subsequent rehires after layoffs, he had presented both a resident alien card (green card) and completed an I-9 (employment eligibility verification form) with his Social Security number. After sustaining a couple of work related injury, Salas was advised by his employer that he needed to be released to full duties before the employer could take him back. Salas at the time advised his employer he anticipated being released with restrictions in the near future. Salas was never called back to employment and subsequently filed a discrimination claim asserting he was denied rehire as a result of both disability and in retaliation for filing a workers’ compensation claim.
  
Following an motion in limine where the employee advised he would invoke his 5th amendment rights against self-incrimination in response to any questions concerning his immigration status, the employer determined his social security number as actually that of another individual living in South Carolina. The employer thereafter filed a motion for summary judgment arguing the employee could not pursue a claim for failure to hire based on discrimination as he was not eligible to work in the United States. Sierra Chemical also argued the doctrine of “unclean hands” applied to bar plaintiff’s causes of action based on the employee’s conduct in knowingly presenting fraudulent information to obtain employment. As a key element in the motion, the employer presented a declaration from the actual owner of the Social Security card that the card had been issued to him, did not belong to the plaintiff and that he had never known plaintiff or provided permission to use his Social Security number.
  
Plaintiff argued the employer did not "prove" the Social Security number belonged to the individual identified as the correct owner of the number. However the declaration executed by plaintiff in opposition to the motion did not assert the Social Security number was his or that he believed there was some kind of error which resulting in duplicate numbers being issued. Instead he acknowledged receiving a letter from the Social Security Administration advising there was an issue with his number. He shared this information with the employer and was told the employer was not going to fire anyone over a “discrepancy” in the Social Security number.
  
The trial court denied the motion for summary ludgment and defendant appealed, obtaining reversal and remand from the Court of Appeal. The lower court then ruled in favor of Sierra and Salas appealed. The appellate court upheld the lower court ruling:
  
The court noted this case involved a “refusal to hire” issue. It distinguished such a claim from harassment or claims based on discriminatory conduct which occurred in the course of employment. The court pointed out that once an employee was hired, whether legally or not, the employee was still entitled to protection of state law in terms of how they were treated. Therefore, an employee was entitled to minimum wages, protection from racial or sexual harassment etc.  However, having unlawfully obtained employment the employee was not legally entitled to receive, he is barred from seeking damages for wrongful termination (or wrongful failure to hire) as he was simply not entitled as a matter of law to the employment relationship as a matter of public policy
  
“Here, Sierra Chemical produced evidence, in the form of Tenney’s sworn statement, that the Social Security number Salas used to obtain employment belonged to Tenney. Sierra Chemical also provided a declaration from Kinder stating that Sierra Chemical had "a long-standing policy" that "precludes the hiring of any applicant who submits false information or false documents in an effort to prove his or her eligibility to work in the United States."

These facts, if not genuinely disputed by Salas, would entitle Sierra Chemical to judgment as a matter of law based on the complete defense of the after-acquired-evidence doctrine. Like Camp, and unlike the cases it distinguished, Salas misrepresented a job qualification imposed by the federal government, i.e., possessing a valid Social Security number that does not belong to someone else, such that he was not lawfully qualified for the job. Further, Salas placed Sierra Chemical in the position of submitting a perjurious I-9 form and filing inaccurate returns with the Internal Revenue Service and the Social Security Administration. In these circumstances, Salas should have no recourse for an allegedly wrongful failure to hire.
  
The court rejected Salas' argument he had raised a triable issue of fact regarding the validity of the Social Security number he had used. The court noted all Salas had to do to create a triable issue was present a signed declaration under penalty of perjury that the Social Security number was in fact his. He did not present such declaration and his only comment on the issue was his revelation of the letter from the Social Security Administration about the validity of his number.
  
The Court also found the doctrine of unclean hands also barred the plaintiff’s causes of action.
  
"The doctrine of unclean hands requires unconscionable, bad faith, or inequitable conduct by the plaintiff in connection with the matter in controversy.  [Citations.]  Unclean hands applies when it would be inequitable to provide the plaintiff any relief, and provides a complete defense to both legal and equitable causes of action.  [Citations.]  ‘Whether the defense applies in particular circumstances depends on the analogous case law, the nature of the misconduct, and the relationship of the misconduct to the claimed injuries.
 
"Similarly, here, Salas’s use of another person’s Social Security number to obtain employment with Sierra Chemical went to the heart of the employment relationship and related directly to his claims that Sierra Chemical wrongfully failed to hire him following his seasonal lay off and discriminated against him by failing to provide a reasonable accommodation for his back injury.  Because Salas was not lawfully qualified for the job, he cannot be heard to complain that he was not hired.  This is so even though he alleges that one reason for the failure to hire was Sierra Chemical’s unwillingness to accommodate his disability."
  
The final argument the court addressed was the assertion by Salas that Senate Bill 1188 prohibiting use of immigration status in enforcement of state labor, employment, civil rights and employee housing laws. The court however rejected the application of SB 1188 to the facts of this case:
  
"However, while SB 1818 provides that undocumented workers are entitled to "[a]ll protections, rights, and remedies available under state law," the enactment does not purport to enlarge the rights of these workers, instead declaring that its provisions are "declaratory of existing law.

"Existing law precluded an employee who 'misrepresented a job qualification imposed by the federal government,' such that he or she was 'not lawfully qualified for the job,' from maintaining a claim for wrongful termination or failure to hire. (Camp, supra, 35 Cal.App.4th at p. 636; Murillo, supra, 65 Cal.App.4th at p. 847; see also Shattuck v. Kinetic Concepts, Inc., supra, 49 F.3d at p. 1108.) This rule applies regardless of immigration status. And it does not frustrate the purposes of SB 1818 because it allows undocumented immigrants to bring a wide variety of claims against their employers as long as these claims are not tied to the wrongful discharge or failure to hire."
  
COMMENTS:
  
It needs to be remembered a motion for summary judgment is a granted only if there are no disputed facts to try which would affect the case as a matter of law. Like all cases on appeal from a motion for summary judgment, the appellate court looks at the facts in the light most favorable to the appellant and evaluates the evidence to see if there is any triable issue for the lower court to consider. In the absence of a disputed fact that would affect the legal outcome, the judgment will be upheld. Therefore, like many other appellate cases, the facts are described in such a fashion that it appears the plaintiff would otherwise have prevailed but for the technical defense presented by the employer. In fact in the case, many of the underlying assertions by the plaintiff, which were assumed for purposes of review, to be accurate, were hotly disputed.  The fact as outlined by the court therefore sound much worse for the employer than they probably were because the Court assumes the plaintiff can prove all of the bad acts the employer is accused of committing. We will never know if the employer actually committed any of the acts alleged by plaintiff because even if true, the court determined as a matter of law the plaintiff was not entitled to relief.
  
This case should not be interpreted as providing an employer with blanket protection to mistreat unlawfully hired workers and indeed the court makes it clear that unlawful treatment of employees during the employment relationship is still actionable. What this case does provide, in the proper circumstances, is a chance for an employer to avoid a costly and expensive fact finding trial and allow rejection of claims for hiring or rehiring (or back pay claims) where the employer becomes aware of an employee's status as an unlawfully hired immigrant.
  
Obviously the best protection is to fully and properly document eligibility for employment but where an employer has made diligent inquiry and obtain the required documentation, it will not be punished where an employee has affirmatively misrepresented his/her ability to be employed.
  
This case arose from a workers’ compensation claim. Does the holding of the appellate court affect how we approach such cases from the standpoint of administering workers' comp claims? The main issue would have to do with the requirement to provide an offer of alternative/modified or regular work under Labor Code Section 4658(d) (15% up or down calculations) and Labor Code Section 4658.6 (Supplemental Job Displacement Voucher). It is still our recommendation that an employer provide an offer of alt/mod/reg employment even if information has been developed that indicates the employee cannot be rehired and after making the offer, allow the employee document his or her eligibility to be rehired. Given the courts discussion of SB 1188, it is unlikely an employer will be able to avoid the consequences of either of these code sections where a job offer has not been made as neither involves actual hiring, rehiring or back pay.  It is still my opinion affirmative action is required, consistent with other legal issues as developed by case law, to implement the return to work provisions in the Labor Code.
  
To read the opinion, click here.

Richard M. "Jake" Jacobsmeyer is a founding partner with Shaw, Jacobsmeyer, Crain & Claffey in Oakland.