Court of Appeal: False Social Security Number = Unclean Hands = No Case

Vicente Salas worked for Sierra Chemical Company. He was seasonal, and was repeatedly laid off and re-hired.  Along the way, he injured himself.  The company allegedly denied him re-hire after he did not produce a release from his doctor. Salas claimed he was told he had to be 100% healed, which is one of those ADA no-nos.  He sued for a variety of employment based claims, including disability discrimination, failure to provide reasonable accommodation, etc.

But Sierra found out that Salas used a false social security number and obtained summary judgment because of the "unclean hands" / after acquired evidence defenses.  (The trial court actually denied the motion, but the court of appeal issued an order to show cause in response to a petition for a writ, resulting in the trial court's changing its mind.)

Salas's use of another person's Social Security number to obtain employment with Sierra Chemical went to the heart of the employment relationship and related directly to his claims that Sierra Chemical wrongfully failed to hire him following his seasonal lay off and discriminated against him by failing to provide a reasonable accommodation for his back injury. Because Salas was not lawfully qualified for the job, he cannot be heard to complain that he was not hired. This is so even though he alleges that one reason for the failure to hire was Sierra Chemical's unwillingness to accommodate his disability.

In light of the nature of the misrepresentation, the fact that it exposed Sierra Chemical to penalties for submitting false statements to several federal agencies, and the fact that Salas was disqualified from employment by means of governmental requirements, we conclude that Salas‟s claims are also barred by the doctrine of unclean hands.

The court also rejected Salas' claim that the Legislature foreclosed the unclean hands/ after acquired evidence defense by passing SB 1818, which provides in pertinent part:

"The Legislature finds and declares the following: [¶] (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...

The court noted that SB 1818 was intended to be "declarative of existing law," and so it did not abrogate existing defenses to employment law actions.

The upshot is that this case denies relief to employees who falsify their employment credentials, resulting in a violation of law if the employer continues to employ the employee.  The employer will have to show as well that the employer's settled policy is to discharge / refuse to hire employees who commit the type of violation at issue.

The case is Salas v. Sierra Chemical Co. and the opinion is here.

DGV

U.S. Supreme Court: States May Require E-Verify

Arizona has a mandatory "E-verify" law. Arizona's law suspends or revokes businesses' licenses if they employ illegal aliens unauthorized to work in the U.S. It also mandates the use of "E-Verify," a federal program permitting electronic verification of an employee's authorization to work in the US.
The Chamber of Commerce and civil rights groups argued that the Arizona law is preempted by federal immigration law.  All lower courts disagreed, and so did the Supreme Court.
In a fractured opinion, the Court held that the federal Immigration Reform and Control Act does not stop Arizona from either suspending business licenses or requiring use of E-Verify. In fact, the law only requires employers to use E-Verify if they wish to rely on a "good faith" defense to proof that the employer is employing unauthorized workers. 
Justice Kagan did not participate, and only four justices concurred in parts of the opinion. However, the continued viability of the Arizona law was upheld 5-3.  So, Arizona is free to require employers to employ only authorized workers or risk losing the right to operate in Arizona.
The case is Chamber of Commerce v. Whiting and the opinion is here.

Another I-9 Reminder

All of you well-educated, information-saturated folks know the new I-9 Form is effective 4/3, right? OK, then.

This one has the 6/30/09 expiration date, just like the old one. But it also has the critical 2/2/09 revision date (visible in the lower right-hand corner of the form.) Looks like you'll have to replace these new forms, too. (The expiration date is near! Alert the media!) So, you can look forward to still more newsletters and blogs nagging you about this critical issue facing employers. If you need one of these new forms, find it here.

I-9 Form Changes

The USCIS has delayed implementation of a new I-9 form containing new employment eligibility documentation requirements. The January 30, 2009 announcement is here. Under the current schedule, a new I-9 form will be required on April 3, 2009. The Jan. 30 order extends the comment period for proposed regulations issued in November 2008.
You can see the new proposed regulations and the sample new I-9 form and instructions here.

New I-9 Form

The USCIS has issued a new Form I-9 for employers to verify employment eligibility. The new form is here. It is substantively unchanged from the prior version, but has a new expiration date (6/30/09). Employers must use the new form as of 7/1/08.

DGV

Ninth Circuit: No-Match Letters Not Convincing Evidence of Immigration Status

The Ninth Circuit held that Aramark's policy of firing workers who did not cure "no-match" letters issued by the Social Security Administration was not compelled by law. Therefore, the court concluded, an arbitration award reinstating 33 workers who did not correct "no-match" deficiencies timely was not contrary to public policy.

In essence, Aramark received "no match" letters from the SSA for over 50 employees. The company issued a letter to the employees saying that if they did not correct the social security numbers within a certain period of time, they would be terminated. The employees' union grieved the termination. An arbitrator held the no-match letter did not establish the employees were ineligible to work and did not supply good cause for discharge under the union contract. Aramark attempted to challenge the award as contrary to public policy, namely IRCA.

The Court of Appeals upheld the arbitrator's award. The court noted that no-match letters did not prove illegal alien status and reviewed impressive statistics showing that many, many employees have mismatches because of factors other than immigrant status. So, the arbitrator's award did not violate public policy and was entitled to deference.

If no-match letters don't prove the employee is not entitled to work, and if the court is correct that there are few consequences that flow from the failure to correct them.... someone might argue: why issue them to the employer at all? Shouldn't it be up to the Social Security Administration and the employee to correct social security information to ensure that withholdings are properly credited? Why should the employer care if the employee is deprived of credit because of a mismatched number? If the employee won't correct it, the money can be used to pay other recipients.

The case is Aramark v. SEIU and the opinion is here.

New I-9 Form

The U.S. Department of Homeland Security has issued a new I-9 Form.
The form itself is largely unchanged. The main revision is to the list of acceptable employment authorization documents. The old form, which was issued in 1991, did not contain all of the acceptable documents.
Don't make too many copies. This form is set to expire in 2008, when the Department may issue an even newer version.

Greg