Appeals Court Rules for Employer in Undocumented Worker Case

By Staff Report

Aug. 10, 2011

An employer sued by an undocumented worker for disability discrimination and workers’ compensation retaliation is entitled to summary judgment, a California appeals court ruled Aug. 9.

The case of Vicente Salas v. Sierra Chemical Co. involves a seasonal production-line worker who used a counterfeit Social Security card with another person’s Social Security number to obtain work from Sierra intermittently over three years.

In March 2006, Salas injured his back while stacking crates and faced several medical restrictions, court records state. Sierra accommodated him with restricted duty, but he injured his back a second time after he was released for full duty. He then filed a workers’ compensation claim, but was laid off in December 2006 as part of Sierra’s annual production-line staff reduction.

Salas testified that Sierra recalled its workforce in 2007, but he was told he could return only if he were “100 percent recovered.”

He sued for violation of California’s Fair Employment and Housing Act, or FEHA, alleging Sierra failed to reasonably accommodate his disability and failed to engage in an interactive process. He also alleged the employer denied him work to punish him for filing a workers’ compensation claim and to intimidate others from doing so.

He then filed a motion advising the trial court he would assert his Fifth Amendment right against self-incrimination in response to any questions concerning his immigration status, and Sierra discovered that the Social Security number used by Salas to secure employment with the company belonged to a North Carolina resident.

The employer then moved for summary judgment, claiming the doctrine of “after-acquired evidence” related to the use of the counterfeit Social Security card barred Salas’ lawsuit.

The company also argued that it would not have hired Salas had it known he was using a counterfeit Social Security card. And it argued that the “doctrine of unclean hands” barred his claim because he misrepresented his eligibility to work in the United States.

Salas argued, among other things, that whether he misrepresented his Social Security number is irrelevant because the company could be liable for disability discrimination under FEHA regardless of his immigration status.

The trial court eventually ruled in favor of Sierra’s request for summary judgment, and Salas appealed.

On Aug. 9, California’s 3rd District Court of Appeals found that the case was not about “pervasive discriminatory conduct” but about refusal to hire, and that Salas “misrepresented a job qualification imposed by the federal government, i.e., possessing a valid Social Security number that does not belong to someone else.”

The appeals court ruled Salas’ claims are barred by the doctrine of after-acquired evidence, which provides employers a defense “where, after an allegedly discriminatory termination or refusal to hire, the employer discovers employee or applicant wrongdoing that would have resulted in the challenged termination or refusal to hire.”

The appeals court also found the doctrine of unclean hands barred Salas’ claim because he exposed Sierra to penalties for submitting false statements required by several federal agencies to establish a worker’s legal work status. The appeals court ordered Salas to reimburse Sierra for its costs on appeal.    

Filed by Roberto Ceniceros of Business Insurance, a sister publication of Workforce Management. To comment, email


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