The California Supreme Court has decided to hear a case that could impact the ability of undocumented workers to collect back wages or sue employers for discrimination in California, and may prove instructive in other courts that periodically have to tackle these issues. The case is Salas v. Sierra Chemical Co. (Case No. S196568), and the California Supreme Court will consider whether an employee’s use of false documentation (in this case, a Social Security number) to obtain employment precludes future actions by that employee for discrimination (disability discrimination here). The court has previously sought briefing on three issues:
- Did the trial court err in dismissing plaintiff's claims under the Fair Employment and Housing Act (Gov. Code § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff's use of false documentation to obtain employment in the first instance?
- Did Senate Bill No. 1818 (2001-2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000; Lab. Code § 1171.5.)
- Does federal immigration law preempt state law and thereby preclude an undocumented worker from obtaining, as a remedy for a violation of "state labor and employment laws" (Lab. Code § 1171.5; Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000), an award of compensatory remedies, including backpay? (See Hoffman Plastic Compounds, Inc. v. NLRB(2002) 535 U.S. 137.)
For those of you with employees in California, the first two issues are more important. Outside of California, they may have less of a direct impact. However, whenever a state supreme court considers the applicability of Hoffman Plastic, you should take notice. Courts and agencies, including the NLRB, have long sought to find broad remedies for undocumented workers, including backpay. As I’ve written elsewhere, Hoffman Plastic upset the balance between immigration law and available remedies for wage and hour, NLRA, and other violations. This case will add one more important voice to the debate over how to strike that balance post-Hoffman Plastic. The court scheduled Salas for oral argument in Los Angeles and will issue a decision by July 1, 2014.