W2 Issues/Concerns

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Check out our weekly blog posts and see the latest news and discussions happening in the HR world of business.

Law & Order: Are unauthorized aliens protected from discrimination in California?

The California Supreme Court recently decided whether an unauthorized alien was protected from discrimination in the workplace under California’s Fair Employment and Housing Act (FEHA).

The background: In April 2003, Vicente Salas provided a Social Security number (SSN) and a resident alien card to Sierra Chemical as part of his employment application. Because of the seasonal nature of the company, which manufactures, packages, and distributes chemicals for treating water, including swimming pool water, production line employees are subject to seasonal layoffs. In October 2003, Salas was laid off, but returned to the company in March 2004 and March 2005, both times using the same SSN. However, in March 2006, Salas injured his back while stacking crates on the production line and was placed on modified duty based on his doctor’s restrictions. After returning to work (with full doctors permission) in August he reinjured his back while stacking crates, but returned to work with restrictions and filed a workers’ compensation claim. He continued performing restricted duties until December 15, 2006, when he was laid off during Sierra’s seasonal reduction of workers.

However, in March 2007, Sierra’s production manager asked Salas if he was able to return to work as a seasonal employee, but when Salas said that he was still under the care of a doctor, the production manager reportedly told him that he could “not return to work like that” because it would violate Sierra’s policies. However, Salas later said he could return to work and would provide a doctors note, but never followed up with the company.

In August, Salas then sued Sierra for failing to provide reasonable accommodations for his disability and wrongfully terminating him in retaliation for filing a workers’ comp claim and for being disabled. During litigation, Sierra discovered that Salas fraudulently used another person’s SSN and Social Security card to obtain his job.

On July 24, 2009, Sierra asked the court to dismiss the case without a trial based on Salas’ unauthorized immigration status. When the trial court denied its request, Sierra appealed, then the court of appeal reversed, and Salas appealed.

The final verdict: The California Supreme Court determined that the IRCA generally doesn’t preempt the application of the FEHA, but federal preemption prohibits an award of lost pay damages under the FEHA for any period of time after a business discovers the employee’s ineligibility under federal law to work in the United States. In addition, the court held that the doctrines of after-acquired evidence and unclean hands are not complete defenses to an employee’s claims under the FEHA, but they do limit the availability of remedies.

Bottom line: Following the case, the California Supreme Court clarified that unauthorized aliens are protected from employment discrimination under the FEHA. However, an unauthorized alien isn’t entitled to recover lost pay damages for any period of time after the employer discovers he isn’t authorized to work. Therefore, cutting off such damages based on the date of the employer’s discovery of the worker’s unauthorized immigration status is consistent with the IRCA, which prohibits employers from continuing to employ an unauthorized alien after discovering his undocumented status.

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