Salas v. Sierra Chemical

Tuesday, August 16, 2011 | 0

A decision rendered Aug. 9 by the California 3rd District Court of Appeal is likely to be of wide interest to the California workers' comp industry.

The decision in Salas V. Sierra Chemical Co. was authored by Justice Andrea Hoch and joined by Justice Vance Raye and Justice Harry Hull. Hoch is well known in workers' comp circles, having served as Administrative Director of the Division of Workers' Compensation for a while after the 2004 reforms.

Hoch adopted the 2005 Permanent Disability Rating Schedule and later served Schwarzenegger as a legal adviser.

Salas v. Sierra Chemical is actually an employment law/Fair Employment and Housing Act case. But it may have impact on workers' comp discrimination cases under Labor Code Section 132A.

Salas sustained several injuries at Sierra Chemical, which employed him on a seasonal basis for its swimming pool chemical business. When recalled after a layoff, Salas was told he would have to produce a full release. Salas alleged that the employer had a "100% healed" policy. The allegation was that Sierra Chemical failed to make reasonable accommodation for his disability and failed to engage in an interactive process to consider reasonable accommodations.

Salas had not been terminated, but the reasonable accommodation issue arose in the context of refusal to rehire.

The case was not a typical employment law case. Rather, Salas v. Sierra Chemical examines the interface between immigration law violations and refusal to hire cases.

Salas apparently was using a Social Security number that actually belonged to a resident of North Carolina. On I-9 and W-4 documents he had included the same false Social Security number. Affidavits filed by Salas failed to convince the court that there was a triable issue of fact regarding the legitimacy of his papers.

The court found the refusal to hire lawsuit barred on two grounds:

1. the "after-acquired evidence doctrine" applied, barring his claim since he had no right to be rehired given the company policy of refusing to hire applicants who submit a false Social Security number.

2. The "unclean hands' doctrine barred his claim. The court stated that
"In light of the nature of the misrepresentation, the fact that it exposed Sierra Chemical to penalties for submitting false statements to federal agencies, and the fact that Salas was disqualified from employment by means of governmental requirements, we conclude that Salas's claims are also barred by the doctrine of unclean hands."

Salas argued that Senate Bill 1818, a 2002 California law, precluded application of after-acquired evidence and unclean hands doctrines based on his immigration status.

The SB 1818 argument was rejected by the Court of Appeals, which noted that while current California law provides that undocumented workers are entitled to "all protections, rights, and remedies available under state law", that SB 1818 did not expand the law to allow undocumented immigrants to maintain failure to hire claims.

It's quite likely that this case will be appealed to the California Supreme Court, which may or may not decide to hear the case. It won't surprise me if the case is eventually heard there, particularly since the legislative history and intent of SB 1818 is involved.

But at the moment, undocumented workers will not be eligible for backpay in failure to rehire claims.

Presumably the same logic would apply to Labor Code 132A claims in a failure to rehire context, since 132A includes back pay and reinstatement remedies.

WorkCompCentral subscribers may read the decision by clicking the case title in the sidebar.

Julius Young is an applicants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, http://www.workerscompzone.com