On the heels of the National Labor Relations Board's recent decision denying back pay to undocumented workers, a California Court of Appeal, in Salas v. Sierra Chemical Co., recently ruled that an undocumented worker who was not eligible to work in the United States was not legally qualified for the job and, therefore, had no recourse for his wrongful failure to hire claims. Sierra Chemical refused to rehire Salas, a seasonal worker who had been laid off and recalled several times, when Salas could not provide a medical release following a workplace injury he suffered the prior season. Salas sued Sierra Chemical claiming failure to hire based on his alleged disability and retaliation for filing a workers' compensation claim. During the course of the litigation, Sierra Chemical discovered that the Social Security number Salas had used to secure employment belonged to someone else. The trial court and Court of Appeal agreed with Sierra Chemical's arguments that this after-acquired evidence and Salas' "unclean hands" barred Salas' claims in their entirety.

The Court acknowledged that undocumented workers are entitled to certain protections under California's employment laws, but distinguished Salas' allegations from claims such as harassment or discriminatory conduct that cause injuries during the term of employment. The Court explained that Salas' use of another person's Social Security number to obtain employment "went to the heart of the employment relationship and related directly to his claims that Sierra Chemical wrongfully failed to hire him...." Therefore, employers should keep in mind that while misconduct by undocumented workers may provide a defense for certain failure to hire or wrongful termination claims, such workers may still have recourse in California for claims of unlawful conduct that caused harm during the employees' term of employment.