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Does IRCA preempt application of California FEHA?

Posted by Eric Kingsley | Jul 29, 2014 | 0 Comments


California FEHA

A June 26th California Supreme Court decision holds that an undocumented worker who was wrongfully terminated in violation of the California Fair Employment and Housing Act (FEHA) may be awarded lost pay damages, even if the employee was ineligible for employment to begin with under federal law.


The plaintiff, Vicente Salas, was a seasonal production line employee with Sierra Chemical, a company that manufactures, packages, and distributes chemicals for treating water, including water in swimming pools. He injured his back while stacking crates on the production line and claimed he needed to change his work routine while he was recovering. Salas filed a workers' compensation claim for his injury, but his employer told him that he could only return to work after he obtained a doctor's release.

Salas never returned to work for Sierra Chemical, however he sued his former employer under the California Fair Employment and Housing Act (FEHA; Gov. Code, §12900 et seq.), alleging that the defendant employer failed to reasonably accommodate his physical disability and refused to rehire him in retaliation for plaintiff‟s having filed a workers' compensation claim.

Sometime thereafter, the defendant learned of information suggesting that Salas had used another man's Social Security number to gain employment with the defendant. Sierra Chemical argued that because Salas was never authorized to work and used false documents to conceal this fact, he should not be entitled to damages.

The trial court denied defendant employer's motion for summary judgment and when the defendant sought a writ of mandate in the Court of Appeal, that court issued an alternative writ. In response, the trial court vacated its order denying defendant's motion for summary judgment, and it entered an order granting the motion. Salas appealed from the ensuing judgment, which the Court of Appeal affirmed. It held that plaintiff's action was barred by the doctrines of after-acquired evidence and unclean hands (based on information defendant acquired during discovery showing wrongdoing by plaintiff), and that here application of those doctrines was not precluded by Senate Bill No. 1818 (2001-2002 Reg. Sess.) (Senate Bill No. 1818), enacted in 2002 (Stats. 2002, ch. 1071, pp. 6913-6915).

Decision by the Supreme Court of California

This case helps to determine whether the federal Immigration Reform and Control Act of 1986 (8 U.S.C. §1101 et seq.), also known as IRCA, preempts application of the antidiscrimination provisions of California‟s FEHA to workers who are unauthorized aliens.  Further, the California law at issue here is not only the FEHA, but also Senate Bill No. 1818, which added to California‟s statutory scheme four nearly identical provisions: Civil Code section 3339, Government Code section 7285, Health and Safety Code section 24000, and Labor Code section 1171.5. Particularly pertinent here is Government Code section 7285, which states:
“The Legislature finds and declares the following:

  • “(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.
  • “(b) For purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person‟s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person‟s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.
  • “(c) The provisions of this section are declaratory of existing law.
  • “(d) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.”

After the Supreme Court of California granted plaintiff employee's petition for review, the Court asked both parties for supplemental briefing on whether federal immigration law preempts California‟s Senate Bill No. 1818, an issue the parties had not raised before. The Supreme Court then concluded: (1) Senate Bill No. 1818, which extends state law employee protections and remedies to all workers “regardless of immigration status,” is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer‟s discovery of an employee‟s ineligibility to work in the United States; and (2) contrary to the Court of Appeal‟s holdings, the doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker‟s claims under California‟s FEHA, although they do affect the availability of remedies. Accordingly, the Court reversed and remanded the matter for further proceedings.

Do you have a legitimate discrimination or retaliation case?

From the decision in the Salas v. Sierra Chemical Co. case, it is clear that an employer who unknowingly hires an undocumented worker cannot escape a judgment awarding damages under FEHA for the period before the employer learns of the employee's unauthorized work status. If you have questions regarding the application of this case, or feel that you have experienced discrimination or retaliation, contact the experienced California attorneys at Kingsley&Kingsley.  Take advantage of a free initial consultation to discuss your specific case by calling us toll-free at (888) 500-8469 or clicking here to contact us regarding your case.

About the Author

Eric Kingsley

In practice since 1996, the firm's lawyer and co-founder, Eric B. Kingsley, has litigated complex cases and written numerous appeals in state and federal courts on behalf of the California law firm Kingsley & Kingsley, including More than 150 collective actions. Mr. Kingsley focuses his practice ...


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