Undocumented Workers Have Limited Remedies

By: Laura C. Hess

On August 9, 2011, the California Court of Appeal issued a decision holding that undocumented workers, who were not lawfully qualified to work in the first place, are not entitled to recover back pay or be reinstated even if their claims might otherwise have merit.

In Salas v. Sierra Chemical Co., the court applied the after-acquired evidence and unclean hands doctrines to dismiss an undocumented worker's claim for disability discrimination. Salas injured his back at work. He was later laid off when Sierra Chemical reduced its work force. Salas sued Sierra Chemical for disability discrimination in violation of the FEHA and denial of employment in violation of public policy. He alleged that Sierra Chemical failed to reasonably accommodate his disability and failed to engage in the interactive process. He also alleged that he was denied employment as punishment for filing a claim for workers' compensation benefits, and to deter him and others from filing such claims.

After the lawsuit was filed, Sierra Chemical learned that Salas had provided it with a false Social Security Number to gain employment. The court found that the undocumented worker was not entitled to future lost wages as a result of alleged disability discrimination.

Laura C. Hess is a Partner with Kring & Chung, LLP's Irvine, CA office. She can be contacted at (949) 261-7700 or lhess@kringandchung.com.

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