Sunday, September 25, 2011

False Social Security Number Sinks California Worker’s Failure-to-Hire Case

Reprinted from Jackson Lewis - Workplace Resource Center

by Mark S. Askanas


An employee who uses false documentation to secure employment with an employer has no recourse for an allegedly wrongful failure to hire, the California Court of Appeal has ruled. Salas v. Sierra Chemical Co., No. C064627 (Cal. Ct. App. Aug. 9, 2011). In addition, the “after-acquired-evidence” doctrine (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 regardless of any discrimination) provides a complete defense to the employee’s claims the employer discriminated against him due to an on-the-job injury, refused to accommodate his disability, and denied him employment as punishment for filing a claim for workers’ compensation benefits. His claims also will be barred by the doctrine of unclean hands if his misrepresentation jeopardizes the employer.


Alleged Discrimination and Refusal to Hire

Sierra Chemical hired Vicente Salas as a seasonal production line worker. Salas claimed that the company refused to rehire him following a seasonal layoff as retaliation for his previous workers’ compensation claim for an on-the-job back injury. He also claimed that the company violated the California Fair Employment and Housing Act (FEHA) by discriminating against him because of the injury. Salas alleged that rather than provide a reasonable accommodation for his disability or engage in an interactive process to determine whether an accommodation could be reached, the company refused to allow him to return to work.

The company countered that the after-acquired-evidence doctrine provided a complete defense to these claims because: (1) Salas used a Social Security number that belonged to another person in order to secure his employment with the company; and (2) the company would not have hired him had it known of this misrepresentation. The trial court granted the company’s motion for summary judgment.


Submission of False Documents

The Court of Appeal affirmed, ruling that the company produced evidence that the Social Security number Salas used to obtain employment belonged to another person. 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. As a result, he was not lawfully qualified for the job. This violated the company’s “long-standing policy” that “precluded the hiring of any applicant who submitted false information or false documents in an effort to prove his or her eligibility to work in the United States.”
Moreover, Salas placed the company in the position of submitting a false I-9 form and filing inaccurate returns with the Internal Revenue Service and the Social Security Administration. These facts entitled the company to judgment as a matter of law based on the after-acquired-evidence doctrine.

Additionally, because Salas’s misrepresentation exposed the company to penalties for submitting false statements to several federal agencies and Salas was disqualified from employment based on governmental requirements, his claims are barred under the doctrine of unclean hands. This doctrine applies when it would be inequitable to provide a plaintiff — who is guilty of unconscionable, bad faith, or inequitable conduct — any relief and is a complete defense to both legal and equitable causes of action.

Salas also claimed that California Senate Bill No. 1818 precluded application of the after-acquired-evidence and unclean hands doctrines in this case. SB 1818 provides, in relevant part:

… (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.

The Court rejected this argument, saying that “while SB 1818 provides that undocumented workers are entitled to ‘[a]ll protections, rights, and remedies available under state law,’ the enactment does not purport to enlarge the rights of these workers, instead declaring that its provisions are ‘declaratory of existing law.’” Thus, the bill did not eliminate existing employment law defenses.

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