Terminated EmployeeIn light of the recent decision in Salas v. Sierra Chemical Co, 198 Cal.App.4th 29 (2011), California employers should look closely at the identification provided by employees during the hiring process whenever an employee pursues claims for discrimination or retaliation relating to any termination or failure to hire.

In Salas, Sierra Chemical Company hired and rehired Plaintiff on multiple occasions.  Each time Plaintiff provided a resident alien card and a completed I-9 form with his Social Security number.  When the employer failed to rehire Plaintiff after he took time off following a workplace injury, Plaintiff asserted claims for failure to hire based upon his disability and in retaliation for filing a prior workers’ compensation claim.  During the pendency of the case, the employer discovered (Shazam!) that Plaintiff had obtained employment using a Social Security number belonging to another person.  Consequently, the employer sought dismissal of Plaintiff’s lawsuit.  When the Plaintiff failed to rebut the evidence showing that he had used another’s Social Security number, the trial court dismissed Plaintiff’s lawsuit.

The Court of Appeal affirmed the trial court ruling and held that Plaintiff could not pursue his action based upon both the “after-acquired evidence” and “unclean hands” doctrines.  With respect to the after-acquired evidence doctrine, because Plaintiff misrepresented a job qualification imposed by the Federal Government (possessing a valid Social Security number) Plaintiff did not possess the necessary qualifications for the position.  Accordingly, Plaintiff had no recourse for any alleged wrongful failure to hire.  Likewise, under the “unclean hands” doctrine, the Court of Appeal concluded that Plaintiff acted in bad faith by knowingly using another person’s Social Security number, which could have exposed the employer to penalties for providing false information to the federal government.  Further, the Court of Appeal held that SB 1818 (providing that immigrant status is irrelevant to employee rights under state employment laws) did not serve to give employees greater rights by exempting them from the after-acquired evidence and unclean hands doctrines.

This decision places a great incentive for employers to do a little digging when confronted with discrimination or retaliation claims by former employees.  If an employer turns up information that would have disqualified the employee from employment from the beginning, the entire lawsuit may be quickly terminated by way of summary judgment.

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