Monday, July 7, 2014
First, despite SB 1818, more defense lawyers will inquire in litigation as to whether the plaintiff-employee is actually an “unauthorized alien” under 8 U.S.C. § 1324a(a)(2), because proving that is a necessary condition for the Salas preemption defense. To be sure, SB 1818 provides that in “proceedings or discovery” to enforce “state labor, employment, civil rights, and employee housing laws,” no one may inquire about a person’s immigration status except to show “by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.” Cal. Gov’t Code § 7285(b). One question is whether this “clear and convincing” standard affects how easily a defendant may prove the Salas preemption defense.
Second, more lawyers will now fight about when an employer “know[s]” the plaintiff’s unauthorized status under 8 U.S.C. § 1324a(a)(2). Current law holds employers not only to actual knowledge but also constructive knowledge of that status, that is, “knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” 8 C.F.R. § 274a.1(l)(1); see Aramark Facility Services v. Services Employees International Union, 530 F.3d 817, 825-32 (9th Cir. 2008). An employer is typically keen to deny that it knew of a worker’s unauthorized status (to avoid IRCA employer sanctions). After Salas, though, an employer has a reason to show that it did constructively know the plaintiff’s unauthorized status, so long as after it knew, the plaintiff was no longer in its employ. In trying to prove this, however, the employer’s attorney should worry about inadvertently letting in, or opposing counsel who respond by bringing in, evidence tending to prove employer IRCA violations---for example, that the employer constructively knew of the plaintiff’s unauthorized status some time before the plaintiff stopped working for it, or that the employer constructively knew of the unauthorized status of some of its other employees that it nonetheless continued to employ.
Third, in some cases, it may be hard to pursue both the Salas preemption defense and the McKennon defense for the same worker misconduct. Although a defendant-employer can also raise a McKennon defense based on a plaintiff-worker’s use of false documents to conceal his actual immigration status, to succeed on the a McKennon defense, the employer must prove that it would have fired the plaintiff for concealing that status. To defeat that would-have-fired showing, plaintiffs’ lawyers may seek evidence of what and when the defendant-employer knew about the immigration status of its other workers and how that employer responded once it knew. After all, they’ll argue, the employer’s past practices with undocumented workers count as relevant, because such practices tend to show what the employer wouldhave done to the plaintiff. Or they’ll argue that since SB 1818 precludes inquiries into anyone’s immigration status except where necessary to “comply with federal immigration law,” it precludes such inquiries in support of a FEHA after-acquired-evidence defense or an unclean-hands defense—both creatures of State law. In contrast, for the Salas preemption defense, the “post-discovery period” seems to start when the duty under section 1324a(a)(2) triggers, even if the employer’s past practices suggests that it in fact would have ignored section 1324a(a)(2) and continued to employ the plaintiff.
Fourth, many lawyers will be puzzled by the Salas Court’s application of the “impossibility” prong of conflict preemption. The Court reasoned that it is impossible for an employer to obey section 1324a(a)(2)—by not continuing to employ a worker it knows to be unauthorized---and obey a judgment requiring it to pay the plaintiff an amount that in part covers lost wages for the time the plaintiff would have been employed after the employer learned that the plaintiff was an unauthorized alien. The puzzle is this: Even if Mr. Salasis an “unauthorized alien,” if on remand Mr. Salas wins his FEHA claims and the court orders Sierra to pay him all lost wages, he would not thereby be employed by Sierra at that time, so section 1324a(a)(2) simply would not apply at the time Sierra’s legal duty to pay the award arises. So long as the judgment does not actually order Sierra to reinstate Salas, it is not impossible to obey ICRA and a court order to pay Salas all the lost wages otherwise owed to him under FEHA. In ruling otherwise, perhaps the Court mistook counterfactual employment—how long Sierra would have employed Salas if it had not violated FEHA—for actualemployment—how long Sierra really did employ Sierra.
To be sure, it’s easy to imagine an alternative ground for precluding lost wages for the “post-discovery” period: Sierra proves that if it had not violated FEHA, it wouldhave hired Salas; it still would have learned that Salas used another man’s Social Security number; and (if this amounts to constructive knowledge of unauthorized status under IRCA) it still would have fired Salas to obey section 1324a(a)(2). If so, a State law award of full lost pay would actually over-compensate Salas—it assumes that Sierra would have paid Salas some wages during a period in which Sierra would not have employed Salas at all. That’s not federal conflict-preemption analysis. That’s just the idea under State law that, in general, an award for lost pay must be limited only to the pay the plaintiff would have received if, all else equal, the defendant had not committed the wrongful act. Whatever its merits—including whether it requires inquiries into immigration status that SB 1818 prohibits, see Cal. Gov’t Code § 7285(b)—this alternative reasoning would have been less favorable to Sierra. According to the Salas opinion, when Salas asserted his Fifth Amendment privilege in his FEHA lawsuit, that “led” Sierra to investigate further, after which it found the apparent Social Security number mismatch. If that causal connection is undisputed, then absent the FEHA violation, Sierra would not have investigated and discovered the mismatch, and thus would not have even arguably known of any unauthorized status.
These are all guesses, of course. Thanks to the blog for letting me share them and thanks in advance for your comments.