©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 129 the accomplishment and execution of the full purposes and objectives of the IRCA.”527 The Court of Appeal reasoned that enforcement of the prevailing wage law “removes a major incentive to hiring undocumented workers.”528 And as to the point that allowing wage suits by unauthorized workers would encourage illegal immigration, the Court of Appeal simply doubted “that many illegal aliens come to this country to gain the protection of our labor laws. Rather it is the hope of getting a job—at any wage—that prompts most illegal aliens to cross our borders.”529 Another California court has held that an undocumented worker who was injured on the job is entitled to workers’ compensation, notwithstanding the employer’s argument that federal immigration law preempts state labor law protections for undocumented workers.530 The Ninth Circuit has upheld a $1.1 million dollar jury verdict for an Italian store manager whose Beverly Hills employer dismissed him when his visa expired.531 The plaintiff claimed that his dismissal breached a contractual promise to dismiss him only for good cause. The employer contended that it had good cause for dismissal because, under IRCA, an employer cannot “continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.”532 The Ninth Circuit, while agreeing that compliance with IRCA would be good cause to dismiss, upheld employer liability on the basis that the employer, instead of immediately dismissing the plaintiff, could have granted his request to go on temporary, unpaid leave for a “reasonable period” in order to restore his authorization to work in the United States.533 Further obstacles to employer reliance on immigration laws as a defense arose during 2014, when the California Supreme Court decided Salas v. Sierra Chemical Co.534 The plaintiff had sued the defendant for failing to accommodate his disability and for refusing to rehire him in retaliation for filing a workers’ compensation claim. The defendant, during the lawsuit, learned that the plaintiff had obtained his job by using a false social security number on his Form I-9 while he, in fact, lacked the legal right to work in the United States.535 The Court of Appeal, in a rare employer-friendly opinion, held that an undocumented worker who fraudulently claims legal work status cannot recover back pay for a wrongful termination or for a wrongful failure to hire because the employer could assert the defenses of after-acquired evidence and unclean hands.536 But the Supreme Court in Salas disagreed, holding that the fraudulent plaintiff could still sue his employer and recover damages for disability discrimination under the FEHA.537 Salas acknowledged that it is a federal crime to use false identification documents to conceal one’s true citizenship or resident alien status, but relied on a California statute providing that applicants and employees are entitled to all “protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, … regardless of immigration status.”538 Salas therefore held that a worker who cannot legally work in the United States can still sue under the FEHA, with the equitable defenses of after-acquired evidence and unclean hands being effective only for the purpose of limiting the remedies and the amount of recoverable damages.539 5.17.2 General protection for unauthorized workers The California Legislature has limited an employer’s ability to deal with employees who have provided false information to secure their jobs. California employers must not “discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change of name, social security number, or federal employment authorization document.”540
RkJQdWJsaXNoZXIy OTkwMTQ4