Salas v. Sierra Chemical:  Will Employers Be Free To Discriminate Against Undocumented Workers In California? 

California has millions of undocumented immigrants.  The vast majority of these men and women come here to work, and the vast majority of them do work.  And yet, because of their undocumented status, these workers face some of the most blatant forms of discrimination, harassment, and wage theft.Gear-and-Gavel_dark-blue

Courts have struggled with how to treat undocumented workers.  For example, if undocumented workers are wrongfully terminated, should they be allowed to sue?  If they prove that they were wrongfully terminated, should they be allowed to recover the wages that they would have earned if they had not been fired?  If not, will this incentivize employers to hire undocumented workers because they are not entitled to the most basic and fundamental workplace protections?

Hoffman Plastics

In 2002, the United States Supreme Court addressed some of these issues in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (2002) 535 U.S. 137.  Hoffman Plastics involved an undocumented worker named Jose Castro.  Mr. Castro was fired for his involvement in a union organizing campaign at his workplace.  That termination violated the National Labor Relations Act (NLRA), which protects workers engaging in such activity.

After Mr. Castro won his case, the question was whether he was entitled to his lost wages (backpay) or, as the employer argued, was Mr. Castro barred from recovering backpay for the sole reason that he was undocumented?

The Supreme Court held that the Immigration Reform and Control Act of 1986 prevents undocumented workers from recovering backpay for violations of the NLRA.  The dissent (any well as many other commentators) criticized Hoffman Plastics for creating a situation in which employers can exploit a worker’s immigration status to avoid their responsibilities under the law.

California’s Response to Hoffman Plastics

In California, the response to Hoffman Plastics was swift:  The Legislature enacted a series of statutes referred to as SB 1818.  At the heart of SB 1818 is California Labor Code section 177.5.  Section 1717.5 provides that, with certain exceptions, all of the protections, rights, and remedies available under state law are available to undocumented workers.


This summer, the California Supreme Court will decide a case interpreting SB 1818.  That case is Vicente Salas v. Sierra Chemical Co. (pending before the California Supreme Court as No. S196558).  Salas will profoundly shape the rights of undocumented workers throughout the state.

The facts of Salas are as follows:  Vicente Salas was disabled while working for his employer, Sierra Chemical (Sierra).  Mr. Salas was a seasonal employee who had to reapply for work each year.  When he was not rehired, he sued, claiming that Sierra had failed both to reasonably accommodate his disability and to engage in an interactive process regarding the accommodations that he required.  He also alleged that Sierra had denied him employment in retaliation for his filing a workers’ compensation claim.

In response, Sierra claimed that Mr. Salas’s Social Security number belonged to someone else.  (Mr. Salas denied this.)  Sierra then moved for summary judgment of Mr. Salas’s claims because, it claimed, it would not have hired him if it had known that he was using a counterfeit Social Security card.  (Sierra’s argument thus relied upon “after-acquired” evidence, or evidence that it did not possess when it refused to rehire Mr. Salas.)  Sierra also claimed that the “unclean hands” doctrine barred his causes of action.

In response, Mr. Salas claimed that Sierra employed many undocumented workers.  Mr. Salas further claimed that his supervisor told him that he “need not worry about any discrepancies with Social Security numbers… [and that] as long as [defendant] remained happy, he would not fire [him] over a discrepancy with a Social Security number.”

The trial court agreed, and granted summary judgment, dismissing Mr. Salas’s claims.  The Court of Appeal upheld the trial court’s decision.

The California Supreme Court is in the process of reviewing the Salas case.  The specific issues that the  Court will address are as follows:  (1) Did the trial court err in dismissing Mr. Salas’s claims on grounds of after-acquired evidence and unclean hands, based on Mr. Salas’s use of false documentation to obtain employment; and  (2) Does SB 1818 preclude application of the legal doctrines used to dismiss Salas’ claim.

Oral argument was held on April 2, 2014.  Mr. Salas argued that his case should be allowed to proceed because SB 1818 provides full protection under state law regardless of whether he was undocumented.  Furthermore, allowing his case to be dismissed would allow employers to exploit undocumented workers.

A decision in Salas is expected this summer.  We will continue to monitor the case and will report on the decision when it comes out.