On August 9, 2011, a California Court of Appeals ruled that an employee, who during the hiring process provided his employer with the Social Security Number (SSN) of another person, lost the right to bring a lawsuit against the employer for alleged discrimination under California law. Salas v. Sierra Chemical Co., 198 Cal. App. 4th 29. Vicente Salas worked as a seasonal employee of Sierra Chemical Co. in San Diego for approximately three years before being injured at work. During the seasonal hiring process, Salas completed an Employment Eligibility Verification Form (Form I 9) and an Employee’s Withholding Allowance Certificate (W-4), which included the SSN of another person. In 2006 Salas suffered a work related injury and, in 2007, the Company allegedly refused to re-hire him because he was not “100% recovered” or “not completely healed.” Salas filed a lawsuit against Sierra Chemical alleging, among other things, that the Company discriminated against him under the Fair Employment and Housing Act (“FEHA”).
In litigation the Company discovered that the SSN used by Salas actually belonged to another man in North Carolina, who had not authorized Salas to use his SSN. Sierra Chemical asked the Court to dismiss Salas’ case under the theory of “after-acquired evidence” and “unclean hands.” Essentially, the Employer argued that it would not have hired Salas had it known that he was using a false SSN; and that Salas’ misrepresentation of his ability to work in the United States prevented him from having a termination based claim. The Court held that a plaintiff cannot have a claim for losing a job that he or she was not entitled to obtain in the first place. Misrepresentation of a job qualification imposed by the U.S. government, like having a valid SSN, legally disqualifies a person for a job and thus he or she are barred from obtaining compensation for losing the job.
The Court clarified, however, that a person “not lawfully qualified for the job” retains the right “right to bring a wide variety of claims against their employers as long as these claims are not tied to the wrongful discharge or failure to hire.” This means that an undocumented worker is “entitled to all the protections available under the law,” except a claim for illegal termination.