Salas v. Sierra Chem. Co., 2014 WL 2883878 (Cal. S. Ct. 2014)

Vicente Salas worked on Sierra Chemical’s production line, filling containers with various chemicals. At the time of his hire, Salas provided Sierra with a resident alien card and a Social Security card and signed an Employment Eligibility Verification Form (I-9 Form). After allegedly injuring his back several times and presenting doctors’ notes restricting his ability to lift, stoop and bend, Salas was laid off in December 2006 as part of Sierra’s annual reduction in its production line staff. Salas received a recall-to-work letter in May 2007, but Sierra did not permit him to return to work after he told the company he was “not completely healed.” Salas subsequently filed a lawsuit against Sierra, alleging disability discrimination and denial of employment in violation of public policy.

After filing an in limine motion stating that he would assert his Fifth Amendment right against self-incrimination to any questions concerning his immigration status, Sierra discovered that the Social Security number (“SSN”) used by Salas to secure employment belonged to a man in North Carolina. Summary judgment was eventually granted in favor of Sierra on the ground that it never would have hired or recalled Salas if it had known he was using a counterfeit SSN. However, in this opinion, the California Supreme Court reversed summary judgment and held that the federal Immigration Reform and Control Act preempts California’s Fair Employment and Housing Act (“FEHA”), which protects employees regardless of their immigration status, only for lost-pay damages for the period of time after the employer discovers that the employee was ineligible to work in the United States. See also Serri v. Santa Clara Univ., 226 Cal. App. 4th 830 (2014) (after-acquired expert evidence that there were no adverse consequences resulting from employee’s failure to perform his or her job duties did not preclude summary judgment for employer).