In Salas v. Sierra Chemical Co, _____Cal.App.4^th ___ (3d Appellate District, 2010) an employee sued a former employer for disability discrimination under the Fair Employment and Housing Act and wrongful failure to hire in violation of public policy.

This case arises from a seasonal employee’s failure to be rehired after suffering a workplace injury during prior term of employment.  On a motion for summary judgment, the employer presented undisputed evidence that the Social Security number used by the employee belonged to another person living in North Carolina.  The trial court granted summary judgment to the employer on the basis of the after Acquired Evidence doctrine and the doctrine of “Unclean Hands.”  The Court of Appeal affirmed.

 The Doctrine of Unclean Hands:

 It is against public policy to provide equitable relief to a person who has engaged in misconduct. 

Federal Law: 

Applicants for employment are required to make certain representations, pre-employment, that establish that they are legally authorized to work in the United States.  Among other things, applicants must fill out a federal “I-9” form and submit certain documents, such as a California Driver License and a Social Security card, that evidence such employment authorization. 

The I-9 form requires, among other things, the applicant to sign a statement, under penalty of perjury, that the documents are genuine and the information presented is correct.  The employer must likewise sign off on the apparent authenticity of the documents presented for inspection.  

In this case, based on such federal legal requirements, the employer submitted materially undisputed evidence that, as a matter of company policy and compliance with federal law, it would not hire anyone not legally authorized to work in the United States.  The employer accordingly established that, had they known that the plaintiff was ineligible to work in the United States, they would not have hired him or offered him employment.  The California Court of Appeal concluded that the employee had no actionable claim for wrongful refusal to hire or disability discrimination because he had no right or ability to work for defendant or any other United States employer.

California Employer Defense Insight:

1)      Employers need to use their best, good faith efforts to comply with the United States immigration and work authorization laws.  Such efforts include close compliance with the requirements set forth on the federal I-9 form, and may include the use of E-Verify to establish employment eligibility. 

2)      If an employee or applicant later asserts an employment discrimination or wrongful termination claim and that employee in fact lacked authorization to work in the United States at the time of his or her hire, the employer may be able to use both the After Acquired Evidence and Unclean Hands doctrines as a defense if the employer can demonstrate that it has an established company policy of refusing to hire or to continue to employ ineligible workers. 

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