Tuesday, March 13, 2012

FEHA Case Involving Undocumented Worker Doesn't Smell Right

When it comes to undocumented workers and protection of employee rights I am one confused individual.

On the one hand, we have laws that are in place to level the playing field for both workers and employers - laws that mandate legal procedures be followed before one can work, or be hired for work, in the United States.

On the other hand, sometimes those laws conflict with basic human rights and their enforcement seems to be in conflict with their intended purposes.

In California we have the Fair Employment and Housing Act (FEHA) that says that an employer can not discriminate against those who claim disability on the job and must make "reasonable accommodation" for them, including a process that is vaguely described (more thoroughly by regulation) as the "interactive process."

It is the interactive process that trips up most employers that are subject to FEHA and subjects them to six digit liability and attorneys fees.

The Third District Court of Appeals (3rd DCA) in August of last year ruled for an employer, upholding summary judgment in Salas v. Sierra Chemical, because the employee did not refute evidence of illegal entry in the US - the reasoning was that if Salas was not legal to be employed in the US then any accommodation or process tied to accommodation under FEHA would be moot and essentially in violation of US immigration laws and policy.

The facts of the case are that Vicente Salas began working for Sierra Chemical in 2003. At that time he signed an employment eligibility verification form, where he wrote a Social Security number and provided a resident alien card that attested to his eligibility to work in the United States. Salas also signed a W-4 income tax statement, using the same Social Security number.

Salas hurt his back while stacking crates on Sierra's production line in 2006 and filed a claim for workers' compensation benefits. He was able to return to work, subject to medical restrictions, but was laid off that December.

In May 2007, Salas received a recall notice from Sierra, offering to reinstate him if he obtained a release authorizing him to return to full-duty status.

Salas then sued Sierra, alleging it had failed to reasonably accommodate his disability, in violation of FEHA and in retaliation for having pursued his workers' compensation claim.

During the discovery process, Sierra learned that the Social Security number Salas had provided was being used by a North Carolina man.

Based on this "after-acquired" evidence, Sierra argued Salas had obtained his job under false pretenses, and that it would not have recalled or hired him in the first place if it had been aware he had provided counterfeit Social Security information in the application process.

San Joaquin County Superior Court Judge Elizabeth Humphreys granted summary judgment in favor of Sierra, and the 3rd DCA unanimously affirmed.

The appellate court determined Salas had used a false Social Security number since he had not refuted the evidence produced by Sierra that the number belonged to a different person. This, the court reasoned, entitled Sierra to judgment as a matter of law since Salas was not eligible to hire in the first place.

The California Supreme Court granted review of the decision last November and the case is pending briefing by the parties.

WorkCompCentral interviewed the lawyers on both sides of the case.

Salas' lawyers argue that the 3rd DCA decision would give unscrupulous employers the "perverse incentive" to hire undocumented workers, so they can "do whatever they wanted" and "later say, 'Oh, they're undocumented,' and get off scot-free for discrimination."

They argue that affirming the 3rd DCA decision would be "to the detriment of all workers," since it would create a "race to the bottom," among employers. "If you have a legally exploitable class," they argue, "it lowers the floor for everybody" as to what employer conduct workers will be willing to tolerate.

The defense argues that Salas "had every opportunity to tell the trial court that he had his own Social Security number and he didn't do it," so "it's reasonable to infer from that he didn't have his own Social Security number."

They said that after Salas was laid-off from Sierra, he began working at another job "that was as heavy" as his former full-duty position. Then, "when Sierra called him up, he didn't tell them, 'Oh by the way, I have another job,'" and thereafter complained "he didn't get offered modified duty."

So where do I stand?

I don't like fibbers. Bottom line. And the fact that Salas didn't tell anyone that his SSN wasn't his, early on in both the FEHA process and in the litigation, tells me that Salas isn't an honest person. If it is correct that he got another job in the meantime and failed to tell Sierra about that is another blight on the honesty-meter.

I don't like that.

He should not be rewarded for dishonesty.

In my opinion the Supreme Court is dealing with a case of dirty facts, and if they decide to render an opinion other than a blanket denial of review then the law on FEHA rights for undocumented workers is going to be messy.

It seems to me that if one can not legally work in the United States because of immigration status then the FEHA interactive process and modified work obligations are moot - to what purpose are these provisions if the person to whom they apply can not actually utilize the benefits?

Though I have a big nose, it is unfortunately not very sensitive to smell.

But the Salas case doesn't smell right to me. That says a lot.

At least regarding this one case, I guess I'm not that confused.


  1. David,

    I agree case "doesn't smell right," looking at both sides of the fence. I suspect for that reason the Supreme Court will deny review.

    But for the EE getting another job and then not telling the ER, I think the EE had reason to complain. ERs should not be rewarded for taking what they're told on employment aps at face value, but then, once a claim is made, turning over every stone, looking for a way to avoid liability based upon knowledge they could have previously obtained.

    Stew (James T. Stewart)

  2. Agreed Stew.

    But what I read was that the claim was admitted and benefits provided.
    Then there was a layoff. After that, and after the IW got another job,
    a new offer came through but there was the requirement that the IW
    certify RTW - and that's when the FEHA allegations came through, and
    thereafter the discovery of illegal status.

    So, the employer did everything right in this case from what I read.

  3. I think Stew is talking about two separate issues; WC benefit provision vs. the regulatory employment law scheme regarding fair employment etc...

    Stew, it seems that the Feds have made it ABUNDANTLY clear that if the I-9 employment verification process etc. goes through w/o any hiccups/red flags, most employers cannot go forward with further scrutinizing of legal/residency status.

    Sure we understand there are plenty of bad actors in the system, including employers who should be held to a higher standard, but how can you tell any employer you should've/could've done more initially when they are slapped on the wrists for doing so?