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Plaintiff sued his former employer under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), alleging that defendant employer failed to reasonably accommodate his physical disability and refused to rehire him in retaliation for plaintiffâs having filed a workersâ compensation claim. Thereafter, defendant learned of information suggesting that plaintiff, to gain employment with defendant, had used another manâs Social Security number.
The trial court denied defendant employerâs motion for summary judgment. When 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 defendantâs motion for summary judgment, and it entered an order granting the motion. Plaintiff employee appealed from the ensuing judgment, which the Court of Appeal affirmed. It held that plaintiffâs 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). That state law declares: âAll 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.â (Stats. 2002, ch. 1071, § 1, p. 6914, italics added.)
After we granted plaintiff employeeâs petition for review, we asked both parties for supplemental briefing on whether federal immigration law preempts Californiaâs Senate Bill No. 1818, an issue the parties had not raised before. We conclude: (1) Senate Bill No. 1818, which extends state law employee protections and remedies to all workers âregardless of immigration status,â is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employerâs discovery of an employeeâs ineligibility to work in the United States, and (2) contrary to the Court of Appealâs holdings, the doctrines of after-acquired evidence and unclean hands are not complete defenses to a workerâs claims under Californiaâs FEHA, although they do affect the availability of remedies. Accordingly, we reverse and remand the matter for further proceedings.
Because this case arises from an order granting summary judgment to a defendant, we briefly set forth the governing principles. A trial court should grant a defendantâs motion for summary judgment if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. On appeal, we review the matter independently, resolving in the plaintiffâs favor any doubts regarding the propriety of summary judgment. (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 605-606 [160 Cal.Rptr.3d 387, 304 P.3d 1052].)
Defendant Sierra Chemical Co. manufactures, packages, and distributes chemicals for treating water, including water in swimming pools. As the weather gets warmer in spring and summer, consumer demand for defendantâs products increases, while in fall and winter demand decreases, which in turn results in defendantâs seasonal layoffs of many production line employees. Those laid-off workers generally are recalled to work when consumer demand rises.
In April 2003, plaintiff Vicente Salas applied for a job with defendant, providing a Social Security number and a resident alien card. He completed and signed, under penalty of perjury, federal Immigration and Naturalization form 1-9, in which he listed the same Social Security number he had given to defendant, and he attached to the form a copy of a Social Security card with that number. He also signed an employeeâs Internal Revenue Service withholding form W-4, which had the same Social Security number he had given defendant. In May 2003, plaintiff began working on defendantâs production line.
In October 2003, plaintiff was laid off because of defendantâs seasonal reduction of production line workers. In March 2004, when plaintiff was called back to work, he used the same Social Security number as before, and the same number again appeared on federal 1-9 and W-4 forms he completed. In December 2004, plaintiff was again laid off. When he was recalled to work in March 2005, the federal W-4 form he signed had the same Social Security number he had provided earlier. Plaintiff was not laid off during the fall and winter of 2005.
In late 2004 or early 2005, plaintiff received a letter from the federal Social Security Administration stating that his name and Social Security number did not match the agencyâs records. Some of his co workers received similar letters. Plaintiff asserts that a few days later defendantâs production manager, Leo Huizar, told the workers not to worry about discrepancies with Social Security numbers because as long as the companyâs president was satisfied with their work they would not be terminated.
On August 16, 2006, plaintiff again injured his back while stacking crates and was taken to the hospital. That same day he returned to work, finishing his shift under the same work restrictions as before. Thereafter, plaintiff filed a workersâ compensation claim for his workplace back injury. Plaintiff still came to work, performing modified duties, until December 15, 2006, when he was laid off during defendantâs seasonal reduction of workers.
In either late January or early February of 2007, plaintiff started working for another company. According to plaintiffâs declaration filed in opposition to defendant employerâs motion for summary judgment, Leo Huizar, defendantâs production manager, telephoned him in March 2007. Huizar asked plaintiff if he wanted to return to work and if he had fully recovered from his back injuries. When plaintiff said he was still seeing a doctor, Huizar responded that plaintiff could ânot return to work like that,â adding it would violate defendant employerâs policies to do so.
On May 1, defendant sent plaintiff a letter stating that it was recalling laid-off employees and informing him to call or come to defendantâs office to make arrangements to return to work. The letter also told him to bring âa copy of your doctorâs release stating that you have been released to return to full duty.â
According to Huizarâs declaration in support of defendantâs motion for summary judgment, plaintiff contacted Huizar on May 6, 2007, and said that he had not reported for work as he had not yet been released by his physician but that he had an appointment on June 12 to obtain the release. Huizar then agreed to hold the job open for plaintiff until plaintiff obtained the doctorâs release, and Huizar told plaintiff to call him if plaintiff was unable to get the release. Huizar never heard from plaintiff again.
In August 2007, plaintiff sued defendant. Plaintiff alleged two causes of action. The first cause of action alleged that plaintiff was disabled and that defendant failed to provide reasonable accommodations for his disability, in violation of Californiaâs FEHA. The second cause of action alleged that defendant wrongfully denied plaintiff employment, in violation of the public
After trial was set for April 9, 2009, both parties filed motions in limine. In one of his motions, plaintiff employee acknowledged that it is a criminal offense under federal law (18 U.S.C. § 1546(b)(2)) and a felony under state law (Pen. Code, § 114) for a person to use false identification documents to conceal the personâs true citizenship or resident alien status. Plaintiff stated that he would testify at trial and assert his privilege against self-incrimination under the Fifth Amendment to the United States Constitution if asked about his immigration status. He asked that he be allowed to assert the privilege outside the juryâs presence and that the court and counsel not comment at trial on his assertion of the privilege. This information led defendant employer to investigate the authenticity of the documents plaintiff had given to defendant in connection with plaintiffâs employment by defendant.
On July 24, 2009, defendant filed a motion for summary judgment, which is at issue here. Defendant sought a determination by the trial court that defendant was entitled to a judgment as a matter of law under the legal doctrines of after-acquired evidence and unclean hands, based on plaintiffâs fraudulent use of another personâs Social Security number and card to obtain employment with defendant. In support, defendant submitted a declaration from Kelly R. Tenney saying that he is a resident of North Carolina and has a certain Social Security number, which is the one plaintiff used when he applied for a job with defendant. Tenney said in his declaration that he did not know plaintiff and had given no one permission to use his Social Security number. Defendant also provided a declaration from its president, Stanley Kinder, stating that defendant has a long-standing policy of not hiring anyone who is prohibited by federal law from working in the United States, and that defendant would immediately discharge any employee upon defendantâs discovery that the employee had given defendant false information or documents to establish work eligibility in the United States.
When the trial court denied defendant employerâs motion for summary judgment, defendant, sought a writ of mandate from the Court of Appeal. When that court issued an alternative writ, the trial court vacated its earlier order denying defendantâs motion and entered a new order granting the motion. Plaintiff appealed from the ensuing judgment, which the Court of Appeal affirmed. The Court of Appeal concluded that plaintiffâs claims were barred by both the doctrine of after-acquired evidence and the doctrine of unclean hands.
II
The threshold inquiry here is 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 Californiaâs FEHA to workers who are unauthorized aliens.
Federal immigration law requires employers to verify the identity and work eligibility of new employees (8 U.S.C. § 1324a(a)(l)(B)(i)); upon an employerâs discovery of a workerâs unauthorized immigration status, termination is required (id., § 1324a(a)(2)). An employer who violates these federal law provisions is subject to civil fines (id., § 1324a(e)(4)(A)) and to criminal prosecution (id., § 1324a(f)(l)). A worker who uses false documents to gain employment is likewise subject to civil fines and criminal prosecution. (Id., § 1324c(a)(1) â (3); 18 U.S.C. § 1546(b).)
The California law at issue here is not only the FEHA, but also Senate Bill No. 1818, which added to Californiaâs 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.
â(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.
â(b) For purposes of enforcing state labor, employment, civil rights, and employee housing laws, a personâs 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 personâs immigration status except where the person seeking to make the inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.
â(c) The provisions of this section are declaratory of existing law.
â(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.â (Italics added.)
The California Legislature enacted Senate Bill No. 1818 in 2002 in response to the United States Supreme Courtâs decision earlier the same year in Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137 [152 L.Ed.2d 271, 122 S.Ct. 1275] (Hoffman). (See Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1197, fn. 3 [127 Cal.Rptr.3d 185, 254 P.3d 237].) In Hoffman, the National Labor Relations Board (NLRB) had determined that an employer violated the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.) by selecting four employees for layoffs because they had supported a unionâs organizing activities. One of those employees, Jose Castro, testified at the administrative hearing that he was illegally in the United States and had used a friendâs birth certificate to obtain a California driverâs license and a federal Social Security card, enabling Castro to obtain employment before and after the layoff. (Hoffman, at p. 141.) The NLRB awarded Castro backpay plus interest from the date he was laid off until the date the employer first learned of Castroâs undocumented status, a period of four and one-half years. (Id. at pp. 141-142.) The federal court of appeals upheld the NLRBâs award. The United States Supreme Court reversed. It said that the NLRB could not âaward backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud.â (Id. at p. 149.) â[A]warding backpay to illegal aliens,â the high court held, âruns counter to policies underlyingâ the Immigration Reform and Control Act of 1986. (Hoffman, at p. 149.)
Furthermore, Californiaâs FEHA, at issue here, differs significantly from the NLRA, at issue in Hoffman. In enacting the FEHA, Californiaâs Legislature sought to safeguard the rights of all persons to seek, obtain, and hold employment without discrimination on account of various characteristics, including race, national origin, physical disability, and medical condition. (Gov. Code, § 12920; see Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 984 [104 Cal.Rptr.3d 710, 224 P.3d 41]; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 891 [66 Cal.Rptr.2d 888, 941 P.2d 1157].) To combat invidious employment discrimination, the FEHAâs remedial scheme depends heavily on private causes of action in which compensatory damages, including lost pay, may be awarded. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 112 [99 Cal.Rptr.2d 745, 6 P.3d 669] [â[U]nder the FEHA, private civil actions by employees are the primary means of enforcing employeesâ rights to be free of unlawful discrimination, once the Department of Fair Employment and Housing determines it will not file a complaint against the employer.â]; Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 218, fn. 8 [185 Cal.Rptr. 270, 649 P.2d 912] [noting that the Department of Fair Employment and Housing routinely issues right-to-sue letters to FEHA claimants].)
The federal NLRA, to achieve its goals, does not similarly rely on private causes of action or the remedy of lost pay damages. Rather, the NLRB can adequately enforce the NLRAâs policies by issuing remedial orders enforceable through its contempt power. (See Hoffman, supra, 535 U.S. at p. 152 [stating that âsuch âtraditional remediesâ â are âsufficient to effectuate national labor policy regardless of whether the âspur and catalystâ of backpay accompanies themâ].) Because of this critical difference between Californiaâs FEHA and the federal NLRA, relating to the role played by lost pay awards in achieving Californiaâs remedial legislative goal, we do not
In addressing the issue of federal preemption, we note, preliminarily, that the federal Immigration Reform and Control Act of 1986 does not preempt all state laws relating to unauthorized aliens. In the words of the high court: âPower to regulate immigration is unquestionably exclusively a federal power. [Citations.] But the [United States Supreme] Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.â (De Canas v. Bica (1976) 424 U.S. 351, 354-355 [47 L.Ed.2d 43, 96 S.Ct. 933] (De Canas).) The high court reaffirmed that observation recently in Arizona v. United States (2012) 567 U.S. __ [183 L.Ed.2d 351, 132 S.Ct. 2492, 2503-2504],
The high court in Arizona v. United States reiterated the three established types of federal law preemption. Federal law preempts a state law when: (1) Congress, acting within its authority, enacts an express provision requiring preemption; (2) the federal regulationâs reach is so pervasive as to leave no room for state regulation, or the federal interest is so dominant that it will be assumed that federal law displaces any state law on the same subject; or (3) the state law conflicts with federal law, either because compliance with both laws is impossible or because the state law is an obstacle to accomplishing congressional objectives. (Arizona v. United States, supra, 567 U.S. at p._[132 S.Ct. at pp. 2500-2501]; English v. General Electric Co. (1990) 496 U.S. 72, 78-79 [110 L.Ed.2d 65, 110 S.Ct. 2270]; see Viva! Internal Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 936 [63 Cal.Rptr.3d 50, 162 P.3d 569].) Because â [federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respectâ (Arizona v. United States, supra, at p._[132 S.Ct. at p. 2500]), the presumption is against federal preemption of state law. In preemption analysis, therefore, âcourts should assume that âthe historic police powers of the Statesâ are not superseded âunless that was the clear and manifest purpose of Congress.â â (Id. at p. ._[132 S.Ct. at p. 2501].)
Turning to the first type of preemption- â express preemption â we note that the federal Immigration Reform and Control Act of 1986 has an express preemption provision, which states: âThe provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.â (8 U.S.C. § 1324a(h)(2), italics added.) We agree with plaintiff employee that this provision is inapplicable here. Rather than asserting any claim of employer wrongdoing in hiring unauthorized aliens, plaintiff seeks in this lawsuit to impose civil sanctions upon defendant employer for alleged violations of Californiaâs FEHA, which prohibits invidious employment discrimination. Accordingly, the relevant federal immigration law does not expressly preempt Californiaâs provisions, enacted by Senate Bill No. 1818, granting state employment law protections to all workers âregardless of immigration status.â
We now consider the second type of preemption â field preemptionâ which occurs either when the federal regulation is so pervasive as to leave no room for state regulation, or when the federal interest is â âso dominant that the federal system will be assumed to preclude enforcement of state laws on the same subjectâ â (Arizona v. United States, supra, 567 U.S. at p. _ [132 S.Ct. at p. 2501], italics added). Some years before its Arizona decision, the United States Supreme Court addressed the dominant federal interest aspect of field preemption in De Canas, supra, 424 U.S. 351. At issue there was the constitutionality of a former California law (Lab. Code, former § 2805, enacted by Stats. 1971, ch. 1442, § 1, p. 2847, repealed by Stats. 1988, ch. 946, § 1, p. 3025) that prohibited employers from knowingly employing nonresident aliens if their employment adversely affected lawful resident workers. De Canas held that the federal interest in regulating employment of unauthorized aliens was not so dominant as to preclude state laws on the same subject (De Canas, at pp. 359-361), although the high court ultimately did not resolve the preemption issue, concluding that issues regarding the proper construction of the challenged state law needed to be resolved first by state courts (id. at pp. 364 â 365). Plaintiff employee here relies on this statement by the high court in De Canas: âStates possess broad authority under their police powers to regulate the employment relationship to protect workers within the State. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmenâs compensation laws are only a few examples.â (Id. at p. 356.) Because De Canas dealt only
At the time of De Canas, federal immigration law expressed at best âa peripheral concern with employment of illegal entrants.â (De Canas, supra, 424 U.S. at p. 360, fn. omitted.) That changed 10 years after the high courtâs 1976 De Canas decision, when Congress enacted the Immigration Reform and Control Act of 1986. That law, with its focus on employment of unauthorized aliens, â âforcefullyâ made combating the employment of illegal aliens central to â[t]he policy of immigration law.â â (Hoffman, supra, 535 U.S. at p. 147, quoting INS v. National Center for Immigrantsâ Rights, Inc. (1991) 502 U.S. 183, 194 & fn. 8 [116 L.Ed.2d 546, 112 S.Ct. 551].) The question before us: Has federal immigration regulation now become so pervasive as to leave no room for state employment laws that extend antidiscrimination protections with lost pay remedies to employees who are unauthorized aliens?
The high court has recently pointed out, as noted earlier, that the statesâ historic police powers are not preempted â âunless that was the clear and manifest purpose of Congressâ â (Arizona v. United States, supra, 567 U.S. at p._[132 S.Ct. at p. 2501]), and it has acknowledged that regulation of the employment relationship is within the statesâ police powers (De Canas, supra, 424 U.S. at p. 356). The parties here have not cited, nor has our research disclosed, evidence of a clear and manifest purpose by Congress to occupy the field of immigration regulation so completely as to preclude the states from applying to unauthorized aliens the statesâ own worker protection labor and employment laws. A conclusion that Congress has occupied the field would dramatically affect state laws such as those regulating workersâ compensation, minimum wages, working hour limits, and worker safety. We therefore conclude that the federal regulation imposed by the Immigration Reform and Control Act of 1986 is not so pervasive as to leave no room for any state law on the same subject.
We now address the third type of federal preemption â conflict preemption â which occurs when state law conflicts with federal law either because compliance with both laws is impossible or because state law is an obstacle to achieving the federal lawâs objectives. (Arizona v. United States, supra, 567 U.S. at p._[132 S.Ct. at p. 2501].) We first consider whether compliance with both federal and state laws is impossible. This inquiry requires us to distinguish here between (1) the period dating from the occurrence of the employerâs alleged wrongful act until the employerâs discovery of the employeeâs ineligibility under federal immigration law to work in the United States (the prediscovery period) and (2) the period after
We first consider the postdiscovery period. Because under federal immigration law an employer may not continue to employ a worker known to be ineligible (8 U.S.C. § 1324a(a)(2)), any state law award that compensates an unauthorized alien worker for loss of employment during the postdiscovery period directly conflicts with the federal immigration law prohibition against continuing to employ workers whom the employer knows are unauthorized aliens. Such an award would impose liability on the employer for not performing an act (continuing to employ a worker known to be an unauthorized alien) expressly prohibited by federal law.
We now turn to the prediscovery period. In allowing lost wages for that period, our state labor laws do not directly conflict with the federal Immigration Reform and Control Act of 1986 because compliance with both federal and state laws is not impossible, as we now explain. Although federal immigration law prohibits an unauthorized alienâs use of any false document to get a job (8 U.S.C. § 1324c(a)(l)-(3)), that law does not prohibit an employer from paying, or an employee from receiving, wages earned during employment wrongfully obtained by false documents, so long as the employer remains unaware of the employeeâs unauthorized status. Thus, allowing recovery of lost wages for the prediscovery period does not produce an
(11) We now consider conflict preemptionâs remaining aspect â also known as obstacle preemption â which exists when the state regulation would frustrate the federal lawâs purpose. Whether there is obstacle preemption is determined by âexamining the federal statute as a whole and identifying its purpose and intended effects.â (Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 373 [147 L.Ed.2d 352, 120 S.Ct. 2288].) If the federal lawâs purpose cannot otherwise be achieved, â âthe state law must yield to the regulation of Congress within the sphere of its delegated power.â â {Ibid.)
The Immigration Reform and Control Act of 1986, at issue here, is âa comprehensive scheme prohibiting the employment of [unauthorized] aliens in the United States.â {Hoffman, supra, 535 U.S. at p. 147.) To achieve the goal of eliminating employment of unauthorized aliens, federal law requires employers to verify that prospective employees are eligible to work in the United States (8 U.S.C. § 1324a(b)), prohibits employers from hiring those unable to provide documents establishing employment eligibility {id., § 1324a(a)(l)), and compels employers to immediately discharge any unauthorized alien worker upon discovery of the workerâs unauthorized status (id., § 1324a(a)(2)). Employers violating these federal law provisions are subject to an escalating series of civil penalties {id., § 1324a(e)(4)(A)), as well as potential criminal prosecution {id., § 1324a(f)(l)).
Far less stringent, however, is federal immigration lawâs approach to unauthorized alien workers. Although Congress made it a crime for an unauthorized alien to use false documents to obtain employment (18 U.S.C. § 1546(b)), Congress did not impose criminal sanctions on unauthorized aliens merely for seeking or engaging in unauthorized work. As the high court recently pointed out, âCongress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,â as this âwould be inconsistent with federal policy and objectives.â (Arizona v. United States, supra, 567 U.S. at p._[132 S.Ct. at p. 2504].)
Californiaâs Senate Bill No. 1818 expressly makes the worker protection provisions of state employment and labor laws available to all workers âregardless of immigration status.â The protections thus extend even to those unauthorized aliens who, in violation of federal immigration law, have used false documents to secure employment. Even if permitting those workers to obtain state remedies for violations of the state labor and employment laws provides an incentive for such federal law violations, the practical effect of such incentive is minimal because the typical unauthorized