1

Filed 6/26/14

IN THE SUPREME COURT OF CALIFORNIA

VICENTE SALAS, )

)

Plaintiff and Appellant, )

) S196568

v. )

) Ct.App. 3 C064627

SIERRA CHEMICAL CO., )

) San Joaquin County

Defendant and Respondent. ) Super. Ct. No. CV033425

____________________________________)

Plaintiff sued his former employer under the California Fair Employment and 

Housing Act (FEHA; Gov. Code, § 12900 et seq.), alleging that defendant 

employer failed to reasonably accommodate his physical disability and refused to 

rehire him in retaliation for plaintiff‟s having filed a workers‟ compensation claim. 

Thereafter, defendant learned of information suggesting that plaintiff, to gain 

employment with defendant, had used another man‟s Social Security number. 

The trial court denied defendant employer‟s motion for summary judgment. 

When defendant sought a writ of mandate in the Court of Appeal, that court issued 

an alternative writ. In response, the trial court vacated its order denying 

defendant‟s motion for summary judgment, and it entered an order granting the 

motion. Plaintiff employee appealed from the ensuing judgment, which the Court 

of Appeal affirmed. It held that plaintiff‟s action was barred by the doctrines of 

after-acquired evidence and unclean hands (based on information defendant 

acquired during discovery showing wrongdoing by plaintiff), and that here 
2

application of those doctrines was not precluded by Senate Bill No. 1818 (2001-

2002 Reg. Sess.) (Senate Bill No. 1818), enacted in 2002 (Stats. 2002, ch. 1071, 

pp. 6913-6915). That state law declares: “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.” 

(Stats. 2002, ch. 1071, § 1, p. 6913, italics added.) 

After we granted plaintiff employee‟s petition for review, we asked both 

parties for supplemental briefing on whether federal immigration law preempts 

California‟s Senate Bill No. 1818, an issue the parties had not raised before. We

conclude: (1) Senate Bill No. 1818, which extends state law employee protections 

and remedies to all workers “regardless of immigration status,” is not preempted 

by federal immigration law except to the extent it authorizes an award of lost pay 

damages for any period after the employer‟s discovery of an employee‟s

ineligibility to work in the United States; and (2) contrary to the Court of Appeal‟s 

holdings, the doctrines of after-acquired evidence and unclean hands are not 

complete defenses to a worker‟s claims under California‟s FEHA, although they 

do affect the availability of remedies. Accordingly, we reverse and remand the 

matter for further proceedings.

I

Because this case arises from an order granting summary judgment to a 

defendant, we briefly set forth the governing principles. A trial court should grant 

a defendant‟s motion for summary judgment if no triable issue exists as to any 

material fact and the defendant is entitled to a judgment as a matter of law. On 

appeal, we review the matter independently, resolving in the plaintiff‟s favor any 

doubts regarding the propriety of summary judgment. (Elk Hills Power, LLC v. 

Board of Equalization (2013) 57 Cal.4th 593, 605-606.)
3

Defendant Sierra Chemical Co. manufactures, packages, and distributes 

chemicals for treating water, including water in swimming pools. As the weather 

gets warmer in spring and summer, consumer demand for defendant‟s products 

increases, while in fall and winter demand decreases, which in turn results in 

defendant‟s seasonal layoffs of many production line employees. Those laid-off 

workers generally are recalled to work when consumer demand rises.

In April 2003, plaintiff Vicente Salas applied for a job with defendant, 

providing a Social Security number and a resident alien card. He completed and 

signed, under penalty of perjury, federal Immigration and Naturalization form I-9, 

in which he listed the same Social Security number he had given to defendant, and 

he attached to the form a copy of a Social Security card with that number. He also

signed an employee‟s Internal Revenue Service withholding form W-4, which had 

the same Social Security number he had given defendant. In May 2003, plaintiff 

began working on defendant‟s production line.

In October 2003, plaintiff was laid off because of defendant‟s seasonal 

reduction of production line workers. In March 2004, when plaintiff was called 

back to work, he used the same Social Security number as before, and the same 

number again appeared on federal I-9 and W-4 forms he completed. In December

2004, plaintiff was again laid off. When he was recalled to work in March 2005, 

the federal W-4 form he signed had the same Social Security number he had 

provided earlier. Plaintiff was not laid off during the fall and winter of 2005.

In late 2004 or early 2005, plaintiff received a letter from the federal Social 

Security Administration stating that his name and Social Security number did not 

match the agency‟s records. Some of his coworkers received similar letters. 

Plaintiff asserts that a few days later defendant‟s production manager, Leo Huizar, 

told the workers not to worry about discrepancies with Social Security numbers 
4

because as long as the company‟s president was satisfied with their work they 

would not be terminated.

In March 2006, plaintiff injured his back while stacking crates on defendant‟s

production line, and he was taken to a hospital. The next day, plaintiff returned to 

work under a physician‟s restrictions that he was not to lift anything weighing 

more than 10 to 15 pounds; he was not to sit, stand, or walk for prolonged periods; 

and he was to limit bending, twisting, and stooping at the waist. Defendant 

employer modified plaintiff‟s work duties accordingly. On June 9, after giving 

defendant a doctor‟s release, plaintiff resumed full duties. 

On August 16, 2006, plaintiff again injured his back while stacking crates 

and was taken to the hospital. That same day he returned to work, finishing his 

shift under the same work restrictions as before. Thereafter, plaintiff filed a 

workers‟ compensation claim for his workplace back injury. Plaintiff still came to 

work, performing modified duties, until December 15, 2006, when he was laid off 

during defendant‟s seasonal reduction of workers. 

In either late January or early February of 2007, plaintiff started working for 

another company. According to plaintiff‟s declaration filed in opposition to 

defendant employer‟s motion for summary judgment, Leo Huizar, defendant‟s 

production manager, telephoned him in March 2007. Huizar asked plaintiff if he 

wanted to return to work and if he had fully recovered from his back injuries. 

When plaintiff said he was still seeing a doctor, Huizar responded that plaintiff 

could “not return to work like that,” adding it would violate defendant employer‟s 

policies to do so. 

On May 1, defendant sent plaintiff a letter stating that it was recalling laid-off 

employees and informing him to call or come to defendant‟s office to make 

arrangements to return to work. The letter also told him to bring “a copy of your 

doctor‟s release stating that you have been released to return to full duty.” 
5

According to Huizar‟s declaration in support of defendant‟s motion for 

summary judgment, plaintiff contacted Huizar on May 6, 2007, and said that he 

had not reported for work as he had not yet been released by his physician but that 

he had an appointment on June 12 to obtain the release. Huizar then agreed to 

hold the job open for plaintiff until plaintiff obtained the doctor‟s release, and 

Huizar told plaintiff to call him if plaintiff was unable to get the release. Huizar 

never heard from plaintiff again. 

In August 2007, plaintiff sued defendant. Plaintiff alleged two causes of 

action. The first cause of action alleged that plaintiff was disabled and that 

defendant failed to provide reasonable accommodations for his disability, in 

violation of California‟s FEHA. The second cause of action alleged that defendant 

wrongfully denied plaintiff employment, in violation of the public policy 

expressed in the FEHA, by retaliating against him for filing a workers‟ 

compensation claim against defendant and for being disabled. Both causes of 

action sought to recover lost wages, compensatory damages for emotional distress, 

punitive damages, and attorney fees.

After trial was set for April 9, 2009, both parties filed motions in limine. In 

one of his motions, plaintiff employee acknowledged that it is a criminal offense 

under federal law (18 U.S.C. § 1546(b)(2)) and a felony under state law (Pen. 

Code, § 114) for a person to use false identification documents to conceal the 

person‟s true citizenship or resident alien status. Plaintiff stated that he would 

testify at trial and assert his privilege against self-incrimination under the Fifth 

Amendment to the United States Constitution if asked about his immigration 

status. He asked that he be allowed to assert the privilege outside the jury‟s 

presence and that the court and counsel not comment at trial on his assertion of the 

privilege. This information led defendant employer to investigate the authenticity 
6

of the documents plaintiff had given to defendant in connection with plaintiff‟s 

employment by defendant. 

On July 24, 2009, defendant filed a motion for summary judgment, which is 

at issue here. Defendant sought a determination by the trial court that defendant 

was entitled to a judgment as a matter of law under the legal doctrines of afteracquired evidence and unclean hands, based on plaintiff‟s fraudulent use of

another person‟s Social Security number and card to obtain employment with 

defendant. In support, defendant submitted a declaration from Kelly R. Tenney

saying that he is a resident of North Carolina and has a certain Social Security 

number, which is the one plaintiff used when he applied for a job with defendant. 

Tenney said in his declaration that he did not know plaintiff and had given no one 

permission to use his Social Security number. Defendant also provided a 

declaration from its president, Stanley Kinder, stating that defendant has a longstanding policy of not hiring anyone who is prohibited by federal law from 

working in the United States, and that defendant would immediately discharge any 

employee upon defendant‟s discovery that the employee had given defendant false 

information or documents to establish work eligibility in the United States.

When the trial court denied defendant employer‟s motion for summary 

judgment, defendant sought a writ of mandate from the Court of Appeal. When 

that court issued an alternative writ, the trial court vacated its earlier order denying 

defendant‟s motion and entered a new order granting the motion. Plaintiff 

appealed from the ensuing judgment, which the Court of Appeal affirmed. The 

Court of Appeal concluded that plaintiff‟s claims were barred by both the doctrine 

of after-acquired evidence and the doctrine of unclean hands.

The Court of Appeal reasoned that the doctrine of after-acquired evidence 

barred plaintiff‟s causes of action because he had misrepresented to defendant 

employer his eligibility under federal law to work in the United States. It also held 
7

that plaintiff‟s claims were subject to the doctrine of unclean hands because he had 

falsely used another person‟s Social Security number in seeking employment with 

defendant, he was disqualified under federal law from working in the United 

States, and his conduct exposed defendant to penalties under federal law.

II

The threshold inquiry here is whether the federal Immigration Reform and 

Control Act of 1986 (8 U.S.C. § 1101 et seq.), also known as IRCA, preempts 

application of the antidiscrimination provisions of California‟s FEHA to workers 

who are unauthorized aliens.1 For the reasons given below, we conclude that the 

FEHA is generally not preempted by federal immigration law, but that federal 

preemption does bar an award of lost pay damages under the FEHA for any period 

of time after an employer‟s discovery of the employee‟s ineligibility under federal 

law to work in the United States.

Federal immigration law requires employers to verify the identity and work

eligibility of new employees (8 U.S.C. § 1324a(a)(1)(B)(i)); upon an employer‟s 

discovery of a worker‟s unauthorized immigration status, termination is required

(id., § 1324a(a)(2)). An employer who violates these federal law provisions is 

subject to civil fines (id., § 1324a(e)(4)(A)) and to criminal prosecution (id., 

§ 1324a(f)(1)). A worker who uses false documents to gain employment is 

likewise subject to civil fines and criminal prosecution. (Id., § 1324c(a)(1)-(3); 18 

U.S.C. § 1546(b).)

 

1 Because the issue involves federal immigration law, we here use that law‟s 

terminology. The Immigration Reform and Control Act of 1986 defines “alien” as 

“any person not a citizen or national of the United States” (8 U.S.C. § 1101(a)(3))

and states that “the term „unauthorized alien‟ means, with respect to the 

employment of an alien at a particular time, that the alien is not at that time either 

[¶] (A) an alien lawfully admitted for permanent residence, or [¶] (B) authorized 

to be so employed by this chapter or by the Attorney General” (id., § 1324a(h)(3)). 
8

The California law at issue here is not only the FEHA, but also Senate Bill 

No. 1818, which added to California‟s statutory scheme four nearly identical 

provisions: Civil Code section 3339, Government Code section 7285, Health and 

Safety Code section 24000, and Labor Code section 1171.5.

2 Particularly 

pertinent here is Government Code section 7285, which states:

“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, and in proceedings or discovery undertaken to enforce those state laws no 

inquiry shall be permitted into a person‟s immigration status except where the 

person seeking to make this inquiry has shown by clear and convincing evidence 

that the inquiry is necessary in order to comply with federal immigration law.

“(c) The provisions of this section are declaratory of existing law.

“(d) The provisions of this section are severable. If any provision of this 

section or its application is held invalid, that invalidity shall not affect other 

provisions or applications that can be given effect without the invalid provision or 

application.” (Italics added.)

 

2 The language of Civil Code section 3339 and Government Code section 

7285 is the same. The language of the other two provisions — Health and Safety 

Code section 24000 and Labor Code section 1171.5 — differs only in the wording 

of subdivision (b). While Civil Code section 3339 and Government Code section 

7285 refer to “state labor, employment, civil rights, and employee housing laws,” 

Health and Safety Code section 24000 and Labor Code section 1171.5 both refer 

only to “state labor and employment laws.”
9

The California Legislature enacted Senate Bill No. 1818 in 2002 in response 

to the United States Supreme Court‟s decision earlier the same year in Hoffman 

Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137 (Hoffman). (See Sullivan 

v. Oracle Corp. (2011) 51 Cal.4th 1191, 1197, fn. 3.) In Hoffman, the National 

Labor Relations Board (NLRB) had determined that an employer violated the 

National Labor Relations Act (NLRA) by selecting four employees for layoffs 

because they had supported a union‟s organizing activities. One of those 

employees, Jose Castro, testified at the administrative hearing that he was illegally 

in the United States and had used a friend‟s birth certificate to obtain a California 

driver‟s license and a federal Social Security card, enabling Castro to obtain 

employment before and after the layoff. (Hoffman, at p. 141.) The NLRB 

awarded Castro backpay plus interest from the date he was laid off until the date 

the employer first learned of Castro‟s undocumented status, a period of four and 

one-half years. (Id. at pp. 141-142.) The federal court of appeals upheld the 

NLRB‟s award. The United States Supreme Court reversed. It said that the 

NLRB could not “award backpay to an illegal alien for years of work not 

performed, for wages that could not lawfully have been earned, and for a job 

obtained in the first instance by a criminal fraud.” (Id. at p. 149.) “[A]warding 

backpay to illegal aliens,” the high court held, “runs counter to policies 

underlying” the Immigration Reform and Control Act of 1986. (Ibid.)

Under the United States Constitution‟s supremacy clause (U.S. Const., art. 

VI, cl. 2), federal law can preempt or supersede state law. California law, as 

established by Senate Bill No. 1818, makes all state-provided worker protections, 

rights, and remedies (except reinstatement prohibited by federal law) “available to 

all individuals regardless of immigration status.” (Gov. Code, § 7285, subd. (a).) 

Are those worker protection state law provisions preempted by the federal 

Immigration Reform and Control Act of 1986, which the high court held in 
10

Hoffman, supra, 535 U.S. 137, prohibited the NLRB from awarding backpay to an 

unauthorized alien who used false documents to get a job? The answer cannot be 

found in Hoffman, which did not decide any issue regarding federal preemption of 

state law but instead addressed federal immigration law‟s impact on a federal

agency’s authority to award a remedy for a violation of federal law. At issue here, 

by contrast, is whether federal immigration law preempts a state

antidiscrimination law enforced through a private action for damages.

Furthermore, California‟s FEHA, at issue here, differs significantly from the 

NLRA, at issue in Hoffman. In enacting the FEHA, California‟s Legislature 

sought to safeguard the rights of all persons to seek, obtain, and hold employment 

without discrimination on account of various characteristics, including race, 

national origin, physical disability, and medical condition. (Gov. Code, § 12920;

see Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 984; Stevenson v. 

Superior Court (1997) 16 Cal.4th 880, 891.) To combat invidious employment 

discrimination, the FEHA‟s remedial scheme depends heavily on private causes of 

action in which compensatory damages, including lost pay, may be awarded. (See 

Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 

112 [“[U]nder the FEHA, private civil actions by employees are the primary 

means of enforcing employees‟ rights to be free of unlawful discrimination, once 

the Department of Fair Employment and Housing determines it will not file a 

complaint against the employer.”]; Commodore Home Systems, Inc. v. Superior 

Court (1982) 32 Cal.3d 211, 218, fn. 8 [noting that the Department of Fair 

Employment and Housing routinely issues right-to-sue letters to FEHA 

claimants].)

The federal NLRA, to achieve its goals, does not similarly rely on private 

causes of action or the remedy of lost pay damages. Rather, the NLRB can 

adequately enforce the NLRA‟s policies by issuing remedial orders enforceable 
11

through its contempt power. (See Hoffman, supra, 535 U.S. at p. 152 [stating that 

“such „traditional remedies‟ ” are “sufficient to effectuate national labor policy 

regardless of whether the „spur and catalyst‟ of backpay accompanies them”].) 

Because of this critical difference between California‟s FEHA and the federal 

NLRA, relating to the role played by lost pay awards in achieving California‟s

remedial legislative goal, we do not consider the high court‟s decision in Hoffman 

controlling here. (See Rivera v. Nibco, Inc. (9th Cir. 2004) 364 F.3d 1057, 1066-

1067 [expressing doubt that Hoffman applies to federal title VII cases because title 

VII, like the FEHA, relies on private actions for enforcement]; Majlinger v. 

Cassino Contracting Corp. (2005) 802 N.Y.S.2d 56, 66 [“the holding of Hoffman 

is not so broad as to require a ruling that a New York court‟s award of lost wages 

to an undocumented alien is preempted by [federal immigration law] or the policy 

underlying it”].)

In addressing the issue of federal preemption, we note, preliminarily, that the 

federal Immigration Reform and Control Act of 1986 does not preempt all state 

laws relating to unauthorized aliens. In the words of the high court: “Power to 

regulate immigration is unquestionably exclusively a federal power. [Citations.] 

But the [United States Supreme] Court has never held that every state enactment 

which in any way deals with aliens is a regulation of immigration and thus per se

pre-empted by this constitutional power, whether latent or exercised.” (De Canas 

v. Bica (1976) 424 U.S. 351, 354-355 (De Canas).) The high court reaffirmed that 

observation recently in Arizona v. United States (2012) ___ U.S. ___ [132 S.Ct. 

2492, 2503-2504]. 

The high court in Arizona v. United States reiterated the three established 

types of federal law preemption. Federal law preempts a state law when: 

(1) Congress, acting within its authority, enacts an express provision requiring 

preemption; (2) the federal regulation‟s reach is so pervasive as to leave no room 
12

for state regulation, or the federal interest is so dominant that it will be assumed 

that federal law displaces any state law on the same subject; or (3) the state law 

conflicts with federal law, either because compliance with both laws is impossible 

or because the state law is an obstacle to accomplishing congressional objectives. 

(Arizona v. United States, supra, __ U.S. at p. __ [132 S.Ct. at pp. 2500-2501]; 

English v. General Electric Co. (1990) 496 U.S. 72, 78-79; see Viva! Internat. 

Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 

Cal.4th 929, 936.) Because “[f]ederalism, central to the constitutional design, 

adopts the principle that both the National and State Governments have elements 

of sovereignty the other is bound to respect” (Arizona v. United States, supra, at 

p. __ [132 S.Ct. at p. 2500]), the presumption is against federal preemption of 

state law. In preemption analysis, therefore, “courts should assume that „the 

historic police powers of the States‟ are not superseded „unless that was the clear 

and manifest purpose of Congress.‟ ” (Id. at p. __ [132 S.Ct. at p. 2501].)

We now apply these principles to the question here of whether federal 

immigration law (specifically, the federal Immigration Reform and Control Act of 

1986) preempts California‟s Senate Bill No. 1818, which was enacted in 2002.

Turning to the first type of preemption — express preemption — we note that 

the federal Immigration Reform and Control Act of 1986 has an express 

preemption provision, which states: “The provisions of this section preempt any 

State or local law imposing civil or criminal sanctions (other than through 

licensing and similar laws) upon those who employ . . . unauthorized aliens.” (8 

U.S.C. § 1324a(h)(2), italics added.) We agree with plaintiff employee that this 

provision is inapplicable here. Rather than asserting any claim of employer 

wrongdoing in hiring unauthorized aliens, plaintiff seeks in this lawsuit to impose 

civil sanctions upon defendant employer for alleged violations of California‟s 

FEHA, which prohibits invidious employment discrimination. Accordingly, the 
13

relevant federal immigration law does not expressly preempt California‟s 

provisions, enacted by Senate Bill No. 1818, granting state employment law 

protections to all workers “regardless of immigration status.” 

We now consider the second type of preemption — field preemption —

which occurs either when the federal regulation is so pervasive as to leave no 

room for state regulation, or when the federal interest is “ „so dominant that the 

federal system will be assumed to preclude enforcement of state laws on the same 

subject‟ ” (Arizona v. United States, supra, __ U.S. at p. __ [132 S.Ct. at p. 2501], 

italics added). Some years before its Arizona decision, the United States Supreme 

Court addressed the dominant federal interest aspect of field preemption in 

De Canas, supra, 424 U.S. 351. At issue there was the constitutionality of a 

former California law (Lab. Code, former § 2805, enacted by Stats. 1971, ch. 

1442, § 1, p. 2847, repealed by Stats. 1988, ch. 946, § 1, p. 3025) that prohibited 

employers from knowingly employing nonresident aliens if their employment 

adversely affected lawful resident workers. De Canas held that the federal interest 

in regulating employment of unauthorized aliens was not so dominant as to 

preclude state laws on the same subject (De Canas, at pp. 359-361), although the 

high court ultimately did not resolve the preemption issue, concluding that issues 

regarding the proper construction of the challenged state law needed to be resolved 

first by state courts (id. at pp. 364-365). Plaintiff employee here relies on this 

statement by the high court in De Canas: “States possess broad authority under 

their police powers to regulate the employment relationship to protect workers 

within the State. Child labor laws, minimum and other wage laws, laws affecting 

occupational health and safety, and workmen‟s compensation laws are only a few 

examples.” (Id. at p. 356.) Because De Canas dealt only with the dominant 

federal interest aspect of field preemption, it did not address the federal regulation

pervasiveness aspect, which is at issue here and which we explore below. 
14

At the time of De Canas, federal immigration law expressed at best “a 

peripheral concern with employment of illegal entrants.” (De Canas, supra, 424 

U.S. at p. 360, fn. omitted.) That changed 10 years after the high court‟s 1976

De Canas decision, when Congress enacted the Immigration Reform and Control 

Act of 1986. That law, with its focus on employment of unauthorized aliens, 

“ „forcefully‟ made combating the employment of illegal aliens central to „[t]he 

policy of immigration law.‟ ” (Hoffman, supra, 535 U.S. at p. 147, quoting INS v. 

National Center for Immigrants’ Rights, Inc. (1991) 502 U.S. 183, 194 & fn. 8.) 

The question before us: Has federal immigration regulation now become so 

pervasive as to leave no room for state employment laws that extend 

antidiscrimination protections with lost pay remedies to employees who are 

unauthorized aliens?

The high court has recently pointed out, as noted earlier, that the states‟ 

historic police powers are not preempted “unless that was the „clear and manifest 

purpose of Congress‟ ” (Arizona v. United States, supra, __ U.S. at p. __ [132 

S.Ct. at p. 2501]), and it has acknowledged that regulation of the employment 

relationship is within the states‟ police powers (De Canas, supra, 424 U.S. at 

p. 356). The parties here have not cited, nor has our research disclosed, evidence 

of a clear and manifest purpose by Congress to occupy the field of immigration 

regulation so completely as to preclude the states from applying to unauthorized 

aliens the states‟ own worker protection labor and employment laws. A 

conclusion that Congress has occupied the field would dramatically affect state 

laws such as those regulating workers‟ compensation, minimum wages, working 

hour limits, and worker safety. We therefore conclude that the federal regulation 

imposed by the Immigration Reform and Control Act of 1986 is not so pervasive 

as to leave no room for any state law on the same subject. 
15

We now address the third type of federal preemption — conflict preemption 

— which occurs when state law conflicts with federal law either because 

compliance with both laws is impossible or because state law is an obstacle to 

achieving the federal law‟s objectives. (Arizona v. United States, supra, __ U.S. at 

p. __ [132 S.Ct. at p. 2501].) We first consider whether compliance with both 

federal and state laws is impossible. This inquiry requires us to distinguish here

between (1) the period dating from the occurrence of the employer‟s alleged 

wrongful act until the employer‟s discovery of the employee‟s ineligibility under 

federal immigration law to work in the United States (the prediscovery period) and 

(2) the period after the employer‟s discovery of that ineligibility (the postdiscovery period). This distinction is called for because the federal Immigration 

Reform and Control Act of 1986 prohibits an employer from continuing to employ 

an unauthorized alien upon discovery of the worker‟s unauthorized status. (8 

U.S.C. § 1324a(a)(2); Hoffman, supra, 535 U.S. at p. 148.) 

We first consider the post-discovery period. Because under federal 

immigration law an employer may not continue to employ a worker known to be 

ineligible (8 U.S.C. § 1324a(a)(2)), any state law award that compensates an

unauthorized alien worker for loss of employment during the post-discovery 

period directly conflicts with the federal immigration law prohibition against 

continuing to employ workers whom the employer knows are unauthorized aliens. 

Such an award would impose liability on the employer for not performing an act

(continuing to employ a worker known to be an unauthorized alien) expressly 

prohibited by federal law.3 Thus, federal law preempts state Senate Bill No. 1818 

 

3 Our preemption analysis for the post-discovery period is limited to 

employers who discover the plaintiff employee‟s unauthorized status after the 

employee has been discharged or not rehired. Not addressed here is a situation in 

(Footnote continued on next page.)
16

to the extent that it makes a California FEHA lost pay award available to an 

unauthorized alien worker for the post-discovery period.

4

We now turn to the prediscovery period. In allowing lost wages for that

period, our state labor laws do not directly conflict with the federal Immigration 

Reform and Control Act of 1986, because compliance with both federal and state 

laws is not impossible, as we now explain. Although federal immigration law 

prohibits an unauthorized alien‟s use of any false document to get a job (8 U.S.C. 

§ 1324c(a)(1)-(3)), that law does not prohibit an employer from paying, or an 

employee from receiving, wages earned during employment wrongfully obtained 

by false documents, so long as the employer remains unaware of the employee‟s 

unauthorized status. Thus, allowing recovery of lost wages for the prediscovery 

period does not produce an “inevitable collision between the two schemes of 

regulation.” (Florida Avocado Growers. v. Paul (1963) 373 U.S. 132, 143.)

 

(Footnote continued from previous page.)

which an employer has knowingly hired or continued to employ an unauthorized 

alien in violation of federal immigration law (see 8 U.S.C. § 1324a(a)(1)-(2)). 

Because imposing full liability for lost wages would provide a disincentive for 

such immigration law violations, thereby furthering the goals of federal 

immigration law, in these situations arguably federal law would not preempt lost 

wages remedies for violations of state laws like California‟s FEHA.

4 California‟s Senate Bill No. 1818 makes available “[a]ll protections, rights, 

and remedies available under state law” relating to employment (except for any 

reinstatement remedy prohibited by federal law) “regardless of immigration 

status.” Such state law remedies cover a wide range. For example, in an action 

alleging violation of California‟s FEHA a worker may recover any “damages 

„generally available in noncontractual actions‟ ” (State Dept. of Health Services v. 

Superior Court (2003) 31 Cal.4th 1026, 1042), including wages a wrongfully 

terminated worker would have earned absent the termination (see Mize-Kurzman 

v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 873, fn. 17).
17

We now consider conflict preemption‟s remaining aspect— also known as 

obstacle preemption — which exists when the state regulation would frustrate the 

federal law‟s purpose. Whether there is obstacle preemption is determined by 

“examining the federal statute as a whole and identifying its purpose and intended 

effects.” (Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 373.) 

If the federal law‟s purpose cannot otherwise be achieved, “ „the state law must 

yield to the regulation of Congress within the sphere of its delegated power.‟ ” 

(Ibid.)

The Immigration Reform and Control Act of 1986, at issue here, is “a 

comprehensive scheme prohibiting the employment of [unauthorized] aliens in the 

United States.” (Hoffman, supra, 535 U.S. at p. 147.) To achieve the goal of 

eliminating employment of unauthorized aliens, federal law requires employers to 

verify that prospective employees are eligible to work in the United States (8 

U.S.C. § 1324a(b)), prohibits employers from hiring those unable to provide 

documents establishing employment eligibility (id., § 1324a(a)(1)), and compels 

employers to immediately discharge any unauthorized alien worker upon 

discovery of the worker‟s unauthorized status (id., § 1324a(a)(2)). Employers 

violating these federal law provisions are subject to an escalating series of civil 

penalties (id., § 1324a(e)(4)(A)), as well as potential criminal prosecution (id.,

§ 1324a(f)(1)). 

Far less stringent, however, is federal immigration law‟s approach to 

unauthorized alien workers. Although Congress made it a crime for an 

unauthorized alien to use false documents to obtain employment (18 U.S.C. 

§ 1546(b)), Congress did not impose criminal sanctions on unauthorized aliens

merely for seeking or engaging in unauthorized work. As the high court recently 

pointed out, “Congress made a deliberate choice not to impose criminal penalties 

on aliens who seek, or engage in, unauthorized employment,” as this “would be 
18

inconsistent with federal policy and objectives.” (Arizona v. United States, supra,

__ U.S. at p. __ [132 S.Ct. at p. 2504].) 

California‟s Senate Bill No. 1818 expressly makes the worker protection

provisions of state employment and labor laws available to all workers “regardless 

of immigration status.” The protections thus extend even to those unauthorized 

aliens who, in violation of federal immigration law, have used false documents to 

secure employment. Even if permitting those workers to obtain state remedies for 

violations of the state labor and employment laws provides an incentive for such 

federal law violations, the practical effect of such incentive is minimal because the 

typical unauthorized alien wage earner is not familiar with the state law remedies 

available for unlawful termination and because job seekers rarely contemplate 

being terminated in violation of the law. Thus, it is highly unlikely that an 

unauthorized alien‟s decision to seek employment in this country would be based 

in any significant part on the availability of lost wages as a remedy for unlawful 

discharge. Any unauthorized aliens who did consider this remedy would also 

realize that by pursuing state law remedies after termination they would risk 

discovery of their unauthorized status, thereby exposing them to criminal

prosecution under both federal law (18 U.S.C. § 1546(b)) and state law (Pen. 

Code, § 114) and to deportation. (See Grocers Supply, Inc. v. Cabello (Tex. 

Ct.App. 2012) 390 S.W.3d 707, 719 [stating that “potential damage awards are not 

meaningful incentives to draw illegal immigrants into this country”].)

Furthermore, not allowing unauthorized workers to obtain state remedies for 

unlawful discharge, including prediscovery period lost wages, would effectively 

immunize employers that, in violation of fundamental state policy, discriminate 

against their workers on grounds such as disability or race, retaliate against 

workers who seek compensation for disabling workplace injuries, or fail to pay the 

wages that state law requires. The resulting lower employment costs would 
19

encourage employers to hire workers known or suspected to be unauthorized 

aliens, contrary to the federal law‟s purpose of eliminating employers‟ economic 

incentives to hire such workers by subjecting employers to civil as well as 

criminal penalties. (See Sure-Tan, Inc. v. NLRB (1984) 467 U.S. 883, 893-894 

[recognizing that enforcing labor laws on behalf of undocumented aliens reduces 

an employer‟s incentive to unlawfully hire them]; Reyes v. Van Elk, Ltd. (2007) 

148 Cal.App.4th 604, 617 [“Allowing employers to hire undocumented workers 

and pay them less than the wage mandated by statute is a strong incentive for the 

employers to do so, which in turn encourages illegal immigration.”]; Farmer 

Brothers Coffee v. Workers’ Comp. Appeals Bd. (2005) 133 Cal.App.4th 533, 540 

[if unauthorized aliens were to be denied state labor law protections, 

“unscrupulous employers would be encouraged to hire aliens unauthorized to work 

in the United States, by taking the chance that the federal authorities would accept 

their claims of good faith reliance upon immigration and work authorization 

documents that appear to be genuine”].) It would frustrate rather than advance the 

policies underlying federal immigration law to leave unauthorized alien workers

so bereft of state labor law protections that employers have a strong incentive to 

“look the other way” and exploit a black market for illegal labor. Accordingly, 

after comparing the likely effects of applying and not applying state labor and 

employment law protection to unauthorized alien workers, we conclude that 

Senate Bill No. 1818, insofar as it makes available to such workers the remedy of 

prediscovery period lost wages for unlawful termination in violation of the FEHA,

does not frustrate the purpose of the federal Immigration Reform and Control Act 

of 1986, and thus is not preempted. 

III

Plaintiff employee challenges the Court of Appeal‟s holdings that the 

doctrines of after-acquired evidence and unclean hands are complete defenses to 
20

plaintiff‟s action against defendant employer. Before addressing plaintiff‟s 

challenges, we consider whether the Legislature, when it enacted Senate Bill No. 

1818, adopted the reasoning of two Court of Appeal decisions addressing the 

application of those doctrines in employment termination cases.

A. Senate Bill No. 1818 and Then Existing Law

The California Legislature enacted Senate Bill No. 1818 in 2002. As we 

have noted (see ante, at p. 9), that law was a direct response to the high court‟s 

2002 decision in Hoffman, supra, 535 U.S. 137, to ensure that in California 

unauthorized alien workers would continue to have the same protections and 

remedies (apart from reinstatement when prohibited by federal law) afforded other 

workers under California‟s employment and labor laws. The 2002 legislation, the 

Legislature said at the time of enactment, is “declaratory of existing law.” (Civ. 

Code, § 3339, subd. (c); Gov. Code, § 7285, subd. (c); Health & Saf. Code, 

§ 24000, subd. (c); Lab. Code, § 1171.5, subd. (c).) Focusing on this just quoted 

language, the Court of Appeal here relied on two Court of Appeal decisions in 

existence at the time of the 2002 legislation‟s enactment: the 1995 decision in 

Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620 (Camp), 

and the 1998 decision in Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 

833 (Murillo). The Court of Appeal here read Camp and Murillo broadly as 

creating a complete defense based on after-acquired evidence, a view that, 

according to the Court of Appeal, the Legislature had adopted in enacting Senate 

Bill No. 1818.

We are not persuaded by the Court of Appeal‟s reasoning on this point. Why 

would the Legislature have focused only on those two Court of Appeal decisions 

(which provided support for the Court of Appeal‟s holding here on the issue of 

after-acquired evidence) while ignoring another Court of Appeal decision, Cooper 
21

v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, which held that after-acquired 

evidence was not a defense to a wrongful termination action alleging age

discrimination? 

Lacking is any indication that when the California Legislature enacted Senate 

Bill No. 1818 in 2002, it intended to endorse or codify the decisions in Camp,

supra, 35 Cal.App.4th 620, and Murillo, supra, 65 Cal.App.4th 833, which 

specifically dealt with the doctrine of after-acquired evidence. No mention of that 

doctrine appeared in Senate Bill No. 1818.

There is another, more persuasive explanation for the Legislature‟s statement 

that Senate Bill No. 1818 is “declaratory of existing law”: “[W]here a statute 

provides that it clarifies or declares existing law, „[i]t is obvious that such a 

provision is indicative of a legislative intent that the amendment apply to all 

existing causes of action from the date of its enactment‟ ” (Western Security Bank 

v. Superior Court (1997) 15 Cal.4th 232, 244), although such a statement of intent 

is “ „not binding‟ ” on the courts (ibid). Thus, we infer here that the Legislature 

intended to extend to cases predating Senate Bill No. 1818‟s enactment that 

statute‟s central directive that state law protections should extend to all employees 

“regardless of immigration status.” Nothing in the statute states or implies that its

central directive would not apply to any unauthorized alien who used false 

documentation to obtain employment. 

We now consider the applicability here of the doctrine of after-acquired 

evidence.

B. After-acquired Evidence

The doctrine of after-acquired evidence refers to an employer‟s discovery, 

after an allegedly wrongful termination of employment or refusal to hire, of 

information that would have justified a lawful termination or refusal to hire. (See 
22

White & Brussack, The Proper Role of After-Acquired Evidence in Employment 

Discrimination Litigation (1993) Boston College L.Rev. 49; Rubinstein, The Use 

of Predischarge Misconduct Discovered After an Employee’s Termination as a 

Defense in Employment Litigation (1990) 24 Suffolk U. L.Rev. 1.) 

Here, plaintiff sued his employer for allegedly violating California‟s FEHA. 

During the litigation, defendant employer obtained information suggesting that 

plaintiff had used another person‟s Social Security number to obtain employment 

with defendant. The Court of Appeal agreed with defendant that the afteracquired evidence completely barred plaintiff‟s claims. Plaintiff challenges that 

holding, arguing that it fails to give effect to the strong public policies contained in 

the FEHA. 

Pertinent here is the high court‟s decision in McKennon v. Nashville Banner 

Publishing Co. (1995) 513 U.S. 352 (McKennon), which was cited by both parties 

and the Court of Appeal. At issue in McKennon was whether after-acquired

evidence provided a complete defense to an employee‟s claim that she was 

terminated in violation of the federal Age Discrimination in Employment Act of 

1967 (ADEA; 29 U.S.C. § 621 et seq.). Resolving a conflict among the federal 

courts of appeals (compare Summers v. State Farm Mut. Auto. Ins. Co. (10th Cir. 

1988) 864 F.2d 700 with Kristufek v. Hussmann Foodservice Co. (7th Cir. 1993) 

985 F.2d 364), the high court held that after-acquired evidence does not bar all 

relief under the federal ADEA, although such evidence can limit the remedies 

granted to the employee. (McKennon, at pp. 361-362.) 

McKennon observed that the federal ADEA sought to eliminate 

discrimination in the workplace and that a private litigant seeking redress 

vindicates the ADEA‟s important public policy against discriminatory 

employment practices. McKennon reasoned that allowing after-acquired evidence 

to completely bar relief in such cases would be inconsistent with the federal 
23

statutory scheme and would impair the efficacy of the ADEA‟s enforcement 

mechanism. (McKennon, supra, 513 U.S. at pp. 358-359.)

The high court in McKennon nevertheless determined that some legitimate 

concerns of the employer justified taking the employee‟s wrongdoing into account 

in fashioning remedies. (McKennon, supra, 513 U.S. at pp. 360-361.) “In 

determining appropriate remedial action, the employee‟s wrongdoing becomes 

relevant not to punish the employee, or out of concern „for the relative moral 

worth of the parties‟ [citation], but to take due account of the lawful prerogatives 

of the employer in the usual course of its business and the corresponding equities 

that it has arising from the employee‟s wrongdoing.” (Id. at p. 361.) 

McKennon held that, because “the factual permutations and the equitable 

considerations they raise will vary from case to case,” the proper remedial relief 

would need to be “addressed by the judicial system in the ordinary course of 

further decisions.” (McKennon, supra, 513 U.S. at p. 361.) The scope of the 

remedy, noted the high court, generally does not include reinstatement. (Id. at 

pp. 361-362.) With regard to the remedy of backpay, the high court remarked: 

“Once an employer learns about employee wrongdoing that would lead to a 

legitimate discharge, we cannot require the employer to ignore the information, 

even if it is acquired during the course of discovery in a suit against the employer 

and even if the information might have gone undiscovered absent the suit. The 

beginning point in the trial court’s formulation of a remedy should be calculation 

of backpay from the date of the unlawful discharge to the date the new information 

was discovered.” (Id. at p. 362, italics added.) Thus, the high court rejected an 

“absolute rule barring any recovery of backpay,” because such a rule “would 

undermine the ADEA‟s objective of forcing employers to consider and examine 

their motivations, and of penalizing them for employment decisions that spring 

from age discrimination.” (Ibid.) 
24

The high court‟s reasoning in McKennon applies with equal force to plaintiff 

employee‟s claim here that the employer violated plaintiff‟s rights under 

California‟s FEHA. That state law seeks “to protect and safeguard the right and 

opportunity of all persons to seek, obtain, and hold employment without 

discrimination or abridgment on account of race, religious creed, color, national 

origin, ancestry, physical disability, mental disability, medical condition, genetic 

information, marital status, sex, gender, gender identity, gender expression, age, 

sexual orientation, or military and veteran status.” (Gov. Code, § 12920; see id.,

§ 12940, subd. (a) [unlawful employment practice for employer to refuse to hire or 

to discharge a person on any of these bases].) Achievement of that 

antidiscrimination goal would be substantially impaired if the doctrine of afteracquired evidence were a complete defense to claims of retaliation and disability 

discrimination brought under the FEHA. By definition, after-acquired evidence is 

not known to the employer at the time of the allegedly unlawful termination or 

refusal to hire. (McKennon, supra, 513 U.S. at pp. 359-360 [distinguishing afteracquired evidence cases from mixed motive cases in which the employer at the 

time of the employment action has two or more motives, at least one of which is 

unlawful].) In after-acquired evidence cases, the employer‟s alleged wrongful act 

in violation of the FEHA‟s strong public policy precedes the employer‟s discovery 

of information that would have justified the employer‟s decision. To allow such

after-acquired evidence to be a complete defense would eviscerate the public 

policies embodied in the FEHA by allowing an employer to engage in invidious 

employment discrimination with total impunity.

It does not follow, however, that the doctrine of after-acquired evidence has 

no bearing on employment discrimination and retaliation claims brought under 

California‟s FEHA. As the high court observed in McKennon, “the lawful 

prerogatives of the employer in the usual course of its business and the 
25

corresponding equities that it has arising from the employee‟s wrongdoing” are 

entitled to recognition. (McKennon, supra, 513 U.S. at p. 361.) In after-acquired 

evidence cases, therefore, both the employee‟s rights and the employer‟s 

prerogatives deserve recognition. The relative equities will vary from case to case, 

depending on the nature and consequences of any wrongdoing on either side, a 

circumstance that counsels against rigidity in fashioning appropriate remedies in 

those actions where an employer relies on after-acquired evidence to defeat an

employee‟s FEHA claims.

Generally, the employee‟s remedies should not afford compensation for loss 

of employment during the period after the employer‟s discovery of the evidence 

relating to the employee‟s wrongdoing. When the employer shows that 

information acquired after the employee‟s claim has been made would have led to 

a lawful discharge or other employment action, remedies such as reinstatement, 

promotion, and pay for periods after the employer learned of such information 

would be “inequitable and pointless,” as they grant remedial relief for a period 

during which the plaintiff employee was no longer in the defendant‟s employment 

and had no right to such employment. (McKennon, supra, 513 U.S. at p. 362.) 

The remedial relief generally should compensate the employee for loss of 

employment from the date of wrongful discharge or refusal to hire to the date on 

which the employer acquired information of the employee‟s wrongdoing or 

ineligibility for employment.5 Fashioning remedies based on the relative equities 

 

5 Defendant employer relies on language by the Court of Appeal in Farmer 

Brothers Coffee v. Workers’ Comp. Appeals Bd., supra, 133 Cal.App.4th at page 

541, that “backpay is not recoverable by an employee who would not be rehired 

regardless of any employer misconduct.” In support, Farmer Brothers cited this 

court‟s decision in Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 

Cal.3d 743 (Rivcom). Rivcom construed an order of the Agricultural Labor 

Relations Board directing compensation for losses incurred by employees “as a 

(Footnote continued on next page.)
26

of the parties prevents the employer from violating California‟s FEHA with 

impunity while also preventing an employee or job applicant from obtaining lost 

wages compensation for a period during which the employee or applicant would 

not in any event have been employed by the employer. In an appropriate case, it 

would also prevent an employee from recovering any lost wages when the 

employee‟s wrongdoing is particularly egregious.

Here, the trial court initially denied defendant employer‟s motion for 

summary judgment because of a triable issue of material fact as to whether 

defendant employer continued to employ plaintiff worker after being put on notice 

that his name did not match the Social Security number he had provided. The 

Court of Appeal concluded there was no triable issue of fact because a mere 

mismatch could have an innocent explanation and was not necessarily inconsistent 

with the evidence that defendant employer had a settled policy of refusing to hire 

applicants who submitted false Social Security numbers.

We agree with the trial court. According to plaintiff‟s declaration, 

defendant‟s production manager, Leo Huizar, after learning that several employees 

had supplied incorrect Social Security numbers, assured them they would not be 

terminated as long as the company‟s president was satisfied with their work. This 

evidence, if true, would support a finding that defendant employer deliberately 

chose to look the other way when put on notice of employees‟ unauthorized status. 

 

(Footnote continued from previous page.)

result” of unlawful employer conduct as excluding employees who would not have 

been rehired under a legitimate hiring policy. (Id. at pp. 773-774.) But contrary to 

the broad language used in Farmer Brothers, this court in Rivcom did not 

announce a rule that an award of backpay is categorically excluded whenever 

reinstatement is not allowed as a remedy.
27

Such a finding could affect application of the after-acquired evidence doctrine and 

thus the remedies available to plaintiff employee.

We now consider the applicability of the doctrine of unclean hands to such 

claims.

C. Unclean Hands

Generally, the equitable doctrine of unclean hands applies when a plaintiff 

has acted unconscionably, in bad faith, or inequitably in the matter in which the 

plaintiff seeks relief. (Precision Co. v. Automotive Co. (1945) 324 U.S. 806, 814-

815; General Elec. Co. v. Superior Court (1955) 45 Cal.2d 897, 899-900; 13 

Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 9, p. 289.) “ „The 

misconduct which brings the clean hands doctrine into operation must relate 

directly to the transaction concerning which the complaint is made, i.e., it must 

pertain to the very subject matter involved and affect the equitable relations 

between the litigants.‟ ” (Camp, supra, 35 Cal.App.4th at pp. 638-639.) If the 

required showing is made, unclean hands may be a complete defense to legal as 

well as equitable causes of action. (Mendoza v. Ruesga (2008) 169 Cal.App.4th 

270, 279.) 

Equitable defenses such as unclean hands may not, however, be used to 

wholly defeat a claim based on a public policy expressed by the Legislature in a 

statute. (See Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 

163, 179; Mendoza v. Ruesga, supra, 169 Cal.App.4th at pp. 279-280; 13 Witkin, 

Summary of Cal. Law, supra, Equity, § 3, p. 285, § 15, p. 301.) Nevertheless, 

equitable considerations may guide the court in fashioning relief in cases 

involving a legislatively expressed public policy. This court recognized that when 

it stated in Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 179: 

“Although equitable principles may not be applied in opposition to statutory 
28

enactments or to defeat public policy established by the Legislature [citations], 

such principles have been applied to reduce ordinary tort damages imposed for 

violation of antidiscrimination laws. [Citations.]”

Accordingly, the Court of Appeal here erred in treating the doctrine of 

unclean hands as a complete defense to plaintiff‟s lawsuit, an action founded upon 

public policies established by the Legislature in the FEHA. 

DISPOSITION

The judgment of the Court of Appeal is reversed, with directions to remand 

the matter to the trial court for further proceedings consistent with this opinion.

KENNARD, J.*

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

 

* Retired Associate Justice of the Supreme Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
1

CONCURRING AND DISSENTING OPINION BY BAXTER, J.

Though with some reservation, I am willing to assume, without deciding, 

that the majority correctly analyzes how the state law doctrine of after-acquired 

evidence should apply,1 in light of Senate Bill No. 1818 (2001-2002 Reg. Sess.) 

(Senate Bill No. 1818), when a person claims he or she was denied employment 

for reasons forbidden by California‟s Fair Employment and Housing Act (FEHA; 

Gov. Code, § 12900 et seq.), but the employer later discovers that, in violation of 

both California and federal law, the person submitted a false Social Security card 

and number as evidence of eligibility to work in the United States.

However, I disagree with the majority‟s holding on the separate issue of 

federal preemption. The majority concludes that federal immigration law 

preempts an award to an alien employee of “lost wage damages”2 for wrongful 

termination under FEHA only with respect to a period after the previously 

unaware employer later learns that, by virtue of the worker‟s federal immigration 

status, he or she was and is legally ineligible for United States employment. In my 

 

1 However, I have some reservations about the majority‟s discussion of the 

unclean hands doctrine. (See post, at p. 7, fn. 4.)

2 Like the majority, when I use the terms “lost wages” or “lost wage 

damages,” sometimes also confusingly referred to as “backpay” or “frontpay,” 

I mean wages attributable to a period after the employer has discharged or 

declined to hire or rehire the individual, during which time the person did not 

actually perform work for the employer, and awarded on the premise that he or 

she would have been working but for the employer‟s wrongful act.
2

view, a state law rule that allows any recovery of post-termination lost wages by 

an employment-ineligible alien who sought or procured the job by submitting 

fraudulent eligibility documents, in direct violation of federal law, is foreclosed by 

the United States Supreme Court‟s definitive interpretation of federal immigration 

policy as set forth in the Immigration Reform and Control Act of 1986 (also 

known as IRCA).

However, the limited record before us does not allow a final application of 

my legal conclusions to the facts that may or may not exist in this case. Most 

significantly, while it seems clear plaintiff knowingly submitted a false Social 

Security card and number when applying for work with defendant, the summary 

judgment motion failed to establish whether plaintiff is, in fact, an alien ineligible 

under federal immigration law to be employed in the United States. Accordingly, 

further litigation of these matters is necessary. Moreover, even if plaintiff is an 

unauthorized alien who committed immigration fraud to obtain his job, he may 

still not be preempted from pursuing nonwage remedies for the defendant‟s 

wrongful conduct, if any, under FEHA. I therefore agree with the majority that 

defendant‟s motion for summary judgment should not have been granted. 

I explain my conclusions below.

As the majority indicates, in April 2003, plaintiff obtained seasonal 

employment with defendant by submitting, as evidence of his eligibility to work in 

the United States, an alien registration card and a Social Security card, both 

bearing his name. Under penalty of perjury, plaintiff signed Immigration and 

Naturalization form I-9, on which he entered the number shown on the Social 

Security card. He also signed Internal Revenue Service form W-4, which included 

the same Social Security number. Each time he was recalled to work, he used this 

Social Security number on new I-9 and W-4 forms he signed. No later than early 
3

2005, a letter from the Social Security Administration advised him that his name 

and Social Security number did not match the agency‟s records.

In 2006, plaintiff hurt his back while on the job for defendant. Thereafter, 

defendant failed to recall him for the 2007 season. He sued defendant, alleging 

that, in violation of FEHA, defendant had refused to rehire him in retaliation for 

his filing of a worker‟s compensation claim, and to avoid accommodating his 

physical disability. Plaintiff sought various forms of monetary recovery, including 

lost wages. 

In the course of pretrial motions, plaintiff acknowledged that it is a state 

and federal felony, when applying for employment, to use false identification 

documents to conceal one‟s true citizenship or resident alien status (18 U.S.C. 

§ 1546(b)(2); Pen. Code, § 114). He stated he intended to testify at trial, and 

would assert his privilege against compelled self-incrimination if asked about his 

immigration status. This led defendant to investigate the authenticity of the 

documents plaintiff had submitted to obtain the job.

Defendant subsequently moved for summary judgment, invoking the 

doctrines of after-acquired evidence and unclean hands. Defendant asserted that 

its discovery of plaintiff‟s fraudulent use of another person‟s Social Security 

number entitled it to dismissal of plaintiff‟s suit as a matter of law.

In support of the motion, defendant submitted evidence that the Social 

Security number provided by plaintiff belonged to Kelly R. Tenney, a North 

Carolina resident, who stated that he did not know plaintiff and had given no one 

permission to use the number. Defendant also submitted the declaration of its 

president, stating that the company had a long-standing policy of refusing to hire 

persons who are not legally authorized to work in the United States, and would 

immediately discharge any employee upon discovering the worker had provided 

false documents or information to establish such eligibility.
4

In response, plaintiff posited, but proffered no evidence, that the Social 

Security number he had provided might mistakenly have been assigned to both 

him and Tenney. Plaintiff did not state that the Social Security card and number 

were his, or that he believed they were. He made no claims about the authenticity 

of the alien registration card he had also submitted, and he neither admitted nor 

denied he was an alien ineligible for United States employment. However, he 

declared, among other things, that several of his coworkers had received the same 

Social Security Administration notice he received, and that defendant‟s production 

manager, Leo Huizar, assured the group they need not worry about discrepancies 

in Social Security numbers so long as defendant was satisfied with their work. 

Plaintiff also stated that, during his years in defendant‟s employ, he “personally 

knew several immigrants” also working there, “some of whom admitted to being 

undocumented workers.” According to plaintiff, he “never heard of [defendant] 

discharging any person due to a discrepancy with a Social Security number, or for 

any other immigration-related issue.”

The trial court initially denied the motion, finding there were triable issues 

whether (1) plaintiff had fraudulently submitted the Social Security number, or 

instead whether the same number had mistakenly been issued to two different 

people; (2) plaintiff was eligible for United States employment based upon his 

submission of a valid alien registration card; and (3) plaintiff had apprised 

defendant of the discrepancy notice he received from the Social Security 

Administration, and if so, whether defendant had acted on this information, or 

instead had ignored it.

Defendant sought mandamus, and the Court of Appeal issued an alternative 

writ. In response, the trial court withdrew its order denying the motion for 

summary judgment, granted the motion, and dismissed the action.
5

The Court of Appeal affirmed. It reasoned that the after-acquired evidence 

and unclean hands doctrines provided a complete defense to the employer‟s 

liability for an allegedly wrongful discharge under FEHA.

The Court of Appeal conceded there was no evidence plaintiff had failed to 

provide a valid alien registration card (a photo identification document which, if 

valid, suffices to establish both identity and employment eligibility for 

immigration law purposes).3 However, the appellate court deemed it undisputed 

that plaintiff had furnished a false Social Security card and number — an act, the 

Court of Appeal noted, that (1) was a criminal violation of the federal immigration 

law, (2) misrepresented a job qualification imposed by the federal government —

the possession of a valid personal Social Security number, and (3) exposed 

defendant to civil and criminal penalties for violation of its obligations under the 

immigration and tax laws to report its employees‟ correct Social Security numbers. 

Because plaintiff‟s wrongdoing independently justified a refusal to employ him, 

and would have caused defendant to take this step had it known the true facts, the 

Court of Appeal concluded he should have no recourse for a failure to rehire that 

stemmed from other, allegedly forbidden, motives.

The Court of Appeal also dismissed plaintiff‟s claim he had demonstrated 

the triability of defendant‟s policies toward employees and applicants who 

submitted false documents. The court reasoned that the declaration of defendant‟s 

president, to the effect that the company would refuse to hire applicants who were 

undocumented, or who provided false numbers, was not directly contradicted by 

Huizar‟s alleged statement that defendant would overlook discrepancies in Social 

Security numbers, or by plaintiff‟s declaration that other employees of defendant 

 

3 See 8 United States Code section 1324a(b)(1)(B)(ii).)
6

admitted they were undocumented aliens, and that plaintiff had never heard of any 

worker being terminated over Social Security or immigration issues.

Finally, the Court of Appeal ruled that application of the after-acquired 

evidence and unclean hands doctrines to bar plaintiff‟s recovery was not precluded 

by Senate Bill No. 1818. This bill inserted, at several places in the codified 

statutes, a declaration that all worker and employee protections, rights, and 

remedies provided by California law, “except any reinstatement remedy prohibited 

by federal law,” are available to individuals “regardless of immigration status.” 

(Stats. 2002, ch. 1071, §§ 1-4, pp. 6914-6915.) The Court of Appeal noted that 

Senate Bill No. 1818 stated it was “declaratory of existing law,” and cannot have 

been intended to immunize undocumented aliens from employer defenses that 

would apply against all other workers. At the time Senate Bill No. 1818 was 

enacted, the Court of Appeal asserted, existing case law barred an employee from 

recovering lost wages for wrongful termination if, as here, he was not legally 

qualified for the job, was not eligible for reinstatement, or would not have been 

reinstated in the exercise of legitimate employer prerogatives.

The majority finds this analysis unpersuasive, and would reverse the Court 

of Appeal. In the majority‟s view, triable issues remain about whether plaintiff‟s 

submission of the false Social Security card and number, if known by defendant, 

would have caused defendant to terminate plaintiff‟s employment.

Further, the majority posits, even if defendant would have declined, on this 

legitimate ground, to hire or retain plaintiff, the after-acquired evidence and 

unclean hands doctrines generally cannot serve as complete bars to a wrongdoing 

worker‟s recovery, under FEHA, when the employer‟s actual motive was 

forbidden by the statute. Except in the most egregious cases of employee 

wrongdoing, the majority concludes, state law makes an employer who terminated 

a worker for reasons prohibited by FEHA liable to the worker for lost wages 
7

attributable to any post-termination period before the employer later discovered 

legitimate grounds for its action. (See, e.g., McKennon v. Nashville Banner 

Publishing Co. (1995) 513 U.S. 352, 360-363 [in suit alleging wrongful 

termination in violation of federal Age Discrimination in Employment Act, 

employer‟s post-termination discovery that, while still working, employee had 

violated company policy by copying and removing confidential documents did not 

preclude employee‟s right to recover lost wages for period before employer 

learned of this independent ground for termination].)4

 

4 However, to the extent the majority implies that the unclean hands doctrine 

might serve to reduce, but not eliminate, the damages due a worker wrongfully 

discharged under FEHA whose own later-discovered wrongdoing would have 

provided legitimate grounds for termination, the majority errs. It is axiomatic that, 

where applicable, the unclean hands doctrine serves as a complete defense to 

employment-based claims. (Chin, et al., Cal. Practice Guide: Employment 

Litigation (The Rutter Group 2013) ¶ 16:616, p. 16-94.6 (rev. #1, 2013) 

(Employment Litigation); see, e.g., Fladeboe v. American Isuzu Motors, Inc.

(2007) 150 Cal.App.4th 42, 56 [“Unclean hands applies when it would be 

inequitable to provide the plaintiff any relief, and provides a complete defense to 

both legal and equitable causes of action.”].)

Thus, if equitable considerations “such as unclean hands” (maj. opn., ante, 

p. 27) cannot completely bar a claim based on statute or important public policy 

(see McKennon v. Nashville Banner Publishing Co., supra, 513 U.S. at p. 360; 

Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 179), the unclean hands 

doctrine is inapplicable in such circumstances. Our suggestion in Angelucci that 

unclean hands may sometimes reduce the damages awarded to an employee 

wrongfully discharged under an antidiscrimination statute (Angelucci, supra, at 

p. 179) appears to have been an imprecise reading of McKennon; McKennon

actually rejected the defense of unclean hands under the statute at issue there 

(McKennon, supra, at p. 360). However, as McKennon also made clear, afteracquired evidence of an employer‟s legitimate grounds for discharging an 

employee may nonetheless be considered when fashioning a remedy for unlawful 

termination in order to “take due account of the lawful prerogatives of the 

employer in the usual course of its business and the corresponding equities that it 

has arising from the employee‟s wrongdoing.” (Id. at p. 361; see Employment 

Litigation, supra, ¶¶ 16:616, 16:617, p. 16-94.6 [though unclean hands can only be 

(Footnote continued on next page.)
8

The majority further concludes that Senate Bill No. 1818‟s reference to 

“existing law” was not intended to endorse, in the immigration context, a broad 

reading of certain prior cases suggesting that under the after-acquired evidence 

and unclean hands doctrines, an employee‟s wrongdoing which would have 

caused his or her legitimate termination bars a claim of wrongful termination. 

Observing that the legislative history of Senate Bill No. 1818 does not mention 

these prior decisions, the majority suggests that the more likely purpose of the 

“existing law” language was to extend to then-pending cases the bill‟s “central 

directive” that full state law employment protections should apply to all 

employees “regardless of immigration status.” (Maj. opn., ante, at p. 21.)

But before discussing these state law issues, the majority addresses a 

“threshold issue” not litigated below — whether a federal immigration statute, 

IRCA, either completely or partially preempts Senate Bill No. 1818‟s mandate that 

all California labor and employment rights and remedies, including those afforded 

by FEHA, are fully applicable to workers “who are unauthorized aliens.” (Maj. 

opn., at p. 7, fn. omitted.) The majority concludes that IRCA does preclude an 

unauthorized alien who was wrongfully terminated in violation of FEHA from 

recovering lost wages for any period after the employer subsequently discovered 

the alien was ineligible for employment under federal immigration law, but does 

not bar such a recovery for the period before the employer learned of the alien‟s 

ineligibility.

 

(Footnote continued from previous page.)

complete defense to wrongful termination, employee misconduct short of unclean 

hands may still be a complete or partial defense under after-acquired evidence 

doctrine].)
9

I have doubts about the majority‟s analysis of state law — in particular, 

I question the majority‟s construction of the “existing law” proviso in Senate Bill 

No. 1818. However, I decline to draw a final conclusion on that issue at the 

current stage of this procedurally tangled case, because I am persuaded that the 

supremacy of federal immigration law may ultimately obviate the recovery the 

majority would allow. If further litigation proves plaintiff actually is an 

unauthorized alien who submitted false documentation to prove otherwise, 

I believe, contrary to the majority, that federal immigration policy will foreclose 

any recovery by plaintiff of post-termination lost wages under California law. 

This result, I conclude, is dictated by definitive United States Supreme Court 

authority.

As the majority acknowledges, under the supremacy clause (U.S. Const., 

art. VI, cl. 2), federal law preempts and supersedes state law if, among other 

things, the state law stands as “an obstacle to accomplishing congressional 

objectives. [Citations.]” (Maj. opn., ante, at p. 12.) The United States Supreme 

Court has told us, in no uncertain terms, that the award of post-termination lost 

wage damages to an unauthorized alien worker who procured the job by 

committing criminal immigration fraud presents just such an unacceptable 

obstacle.

In Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137 

(Hoffman), the National Labor Relations Board (NLRB or Board) found that, in 

1992, Hoffman Plastic Compounds, Inc. (Hoffman), a custom formulator of 

industrial and pharmaceutical chemical products, had committed an unfair labor 

practice under the National Labor Relations Act (NLRA) by terminating Jose 

Castro and several other workers in retaliation for their union organizing activities. 

As remedies, the Board ordered Hoffman, among other things, to offer 
10

reinstatement and backpay (i.e., post-termination lost wages) to the affected 

employees.

At a subsequent compliance hearing, Castro disclosed that he was an alien 

who had never been authorized to work in the United States. Castro further 

indicated that he had gained employment with Hoffman by proffering a birth 

certificate belonging to a Texas-born friend, and that he had also used this 

certificate to fraudulently obtain a Social Security card. Based on this evidence, 

the administrative law judge (ALJ) found that the Board was precluded from 

awarding reinstatement or backpay to Castro.

Several years later, the Board reversed the ALJ on the issue of Castro‟s 

backpay. The Board concluded that “ „the most effective way to accommodate 

and further the immigration policies embodied in [IRCA] is to provide the 

protections and remedies of the [NLRA] to undocumented workers in the same 

manner as to other employees.‟ [Citation.]” (Hoffman, supra, 535 U.S. at p. 141.) 

Accordingly, the Board ruled that Castro was entitled to some $67,000 in backpay, 

plus interest on that principal amount. The court of appeals enforced the Board‟s 

order. 

The United States Supreme Court reversed. At the outset, the majority 

noted that the NLRB‟s authority to remedy unfair labor practices, though broad, is 

not unlimited where “the Board‟s remedial preferences . . . potentially trench upon 

federal statutes and policies unrelated to the NLRA.” (Hoffman, supra, 535 U.S. 

at p. 144.)

The Hoffman majority explained that, in Sure-Tan, Inc. v. NLRB (1984) 

467 U.S. 883— at a time when federal immigration law did not expressly prohibit 

unauthorized aliens from working or being hired while present in this country, and 

was only “ „ “peripheral[ly]” ‟ ” concerned with their employment here — the 

court had nonetheless precluded the NLRB from unconditionally ordering 
11

reinstatement of undocumented alien employees who had since voluntarily left the 

country. (Hoffman, supra, 535 U.S. at p. 144.) So as to not “effectively [reward] 

a violation of the immigration laws by reinstating workers not authorized to reenter the United States” (id.), Sure-Tan had required that an award of 

reinstatement in such cases be conditioned on proof of the workers‟ legal reentry. 

Moreover, the court had reasoned in Sure-Tan, these employees “ „must be 

deemed “unavailable” ‟ ” for work, and backpay could thus not be awarded, with 

respect to any period in which such persons “ „were not lawfully entitled to be 

present and employed in the United States.‟ ” (Hoffman, supra, at p. 145.)

In Hoffman, the Board argued that the Sure-Tan limitations applied only to 

undocumented aliens who had left the United States and thus could not claim 

reinstatement or backpay without legal reentry. But whatever isolated passages in 

Sure-Tan might support that conclusion, the Hoffman majority observed, “the 

question presented here [is] better analyzed through a wider lens, focused as it 

must be on a legal landscape now significantly changed.” (Hoffman, supra, 

535 U.S. at p. 147.) Whether or not, at the time of Sure-Tan, the Board might be 

required to yield “where . . . [its] chosen remedy trenches on a federal statute or 

policy outside [that agency‟s] competence to administer,” said the Hoffman

majority, “[such] is precisely the situation today.” (Hoffman, supra, at p. 147.)

As the Hoffman majority recounted, “two years after Sure-Tan, Congress 

[had] enacted IRCA, a comprehensive immigration reform scheme [that] 

prohibit[s] the employment of illegal aliens” and “ „forcefully‟ [makes] combating 

[such] employment . . . central to „[t]he policy of immigration law.‟ [Citation.]” 

(Hoffman, supra, 535 U.S. at p. 147.) “[C]ritical” to enforcement of the 

prohibition, the court noted, is an “extensive . . . verification system . . . designed 

to deny employment to aliens” not legally present or “authorized to work” in this 

country. (Ibid.) Under this system, an employer must verify the identity and 
12

eligibility of all potential new hires by examining specified documentation. An 

employer that hires an alien applicant who is unable to present such 

documentation, or otherwise knowingly employs an ineligible alien, is subject to 

civil and criminal penalties.

To ensure the effective confirmation of an applicant‟s authorization to work 

in this country, the Hoffman majority pointed out, IRCA “makes it a crime for an 

unauthorized alien to subvert [this] verification system by tendering fraudulent 

documents. [Citation.]” (Hoffman, supra, 535 U.S. at p. 148.) “[The statute] thus 

prohibits aliens from using or attempting to use „any forged, counterfeit, altered, 

or falsely made document‟ or „any document lawfully issued to or with respect to 

a person other than the possessor‟ for purposes of obtaining employment in the 

United States. [Citation.] Aliens who use or attempt to use such documents are 

subject to fines and criminal prosecution. [Citation.]” (Ibid.)

“Under the IRCA regime,” the Hoffman majority explained, “it is 

impossible for an undocumented alien to obtain employment in the United States 

without some party directly contravening explicit congressional policies. Either 

the undocumented alien tenders fraudulent identification, which subverts the 

cornerstone of IRCA‟s enforcement mechanism, or the employer knowingly hires 

the undocumented alien in direct contradiction of its IRCA obligations. The 

Board asks that we overlook this fact and allow it to award backpay to an illegal 

alien for years of work not performed, for wages that could not lawfully have been 

earned, and for a job obtained in the first instance by a criminal fraud. We find, 

however, that awarding backpay to illegal aliens runs counter to policies 

underlying IRCA, policies the Board has no authority to enforce or administer. 

Therefore, as we have consistently held in like circumstances, the award lies 

beyond the bounds of the Board‟s remedial discretion.” (Hoffman, supra, 

535 U.S. at pp. 148-149, italics added.)
13

The Board urged that a limited backpay award — one confined to the 

period before the employer learned of Castro‟s illegal status — would reasonably 

accommodate IRCA, because during the prediscovery period, the employer would 

not have violated IRCA by retaining Castro in its employ, and because IRCA does 

not expressly prohibit the recovery of backpay by illegal aliens who misused 

documents to procure their jobs. The Hoffman majority rejected this argument. 

“What matters here,” the majority declared, “and what sinks both of the Board‟s 

claims, is that Congress has expressly made it criminally punishable for an alien to 

obtain employment with false documents. There is no reason to think that 

Congress nonetheless intended to permit backpay where but for an employer‟s 

unfair labor practices, an alien-employee would have remained in the United 

States illegally, and continued to work illegally, all the while successfully evading 

immigration authorities. Far from „accommodating‟ IRCA, the Board‟s position, 

recognizing employer misconduct but discounting the misconduct of illegal alien 

employees, subverts it.” (Hoffman, supra, 535 U.S. at pp. 149-150, fn. omitted.) 

Indeed, the Hoffman majority asserted, such a backpay award “not only trivializes 

the immigration laws, it condones and encourages future violations” by creating 

incentives to remain and work in this country illegally. (Id., at p. 150.)

“We therefore conclude,” the Hoffman majority declared, “that allowing the 

Board to award backpay to illegal aliens would unduly trench upon explicit 

statutory prohibitions critical to federal immigration policy, as expressed in 

IRCA. It would encourage the successful evasion of apprehension by immigration 

authorities, condone prior violations of the immigration laws, and encourage 

future violations. However broad the Board‟s discretion to fashion remedies when 

dealing only with the NLRA, it is not so unbounded as to allow this sort of an 

award.” (Hoffman, supra, 535 U.S. at pp. 151-152, italics added.)
14

Thus, after considering the issue at length, the high court has made crystal 

clear that federal immigration policy, as set forth in IRCA, is critically undermined 

by the award of post-termination lost wages to an alien who is not legally present 

or authorized to work in this country, and who committed criminal immigration 

fraud to obtain the job, even when the alien was wrongfully terminated in violation 

of another law generally intended for the protection of workers‟ rights. The 

conclusion follows inescapably, under the federal supremacy clause, that 

California cannot authorize such an award, for it would “ „stand[ ] as an obstacle 

to the accomplishment and execution of the full purposes and objectives of 

Congress . . .‟ [citations].” (Arizona v. United States (2012) ___ U.S. ___, ___ 

[132 S.Ct. 2492, 2501].)

The instant majority struggles mightily to avoid this result. In the 

majority‟s view, we may disregard Hoffman for purpose of preemption analysis 

because (1) Hoffman concerned only the interplay of two federal statutes, and said 

nothing about IRCA‟s preemptive effect on state worker protection laws; 

(2) Congress has not expressly precluded all state laws concerning undocumented 

aliens, or so occupied the field as to dictate such preclusion; (3) there is a 

presumption against preemption in areas of traditional state regulation, such as the 

protection of workers; and (4) the NLRA, the statute at issue in Hoffman, does not 

rely, for enforcement, on private suits for damages to the same extent as does 

California‟s antidiscrimination statute, FEHA.

Then, as if Hoffman did not exist, the majority reweighs the concerns that 

led the Hoffman majority to its ruling. Contrary to Hoffman, the instant majority 

concludes that a rule allowing a criminally fraudulent unauthorized alien to collect 

wrongful-termination lost wage damages will have but a “minimal” effect on 

IRCA‟s policies (maj. opn., ante, at p. 18), while failing to allow such a recovery 

against an employer who wronged the worker under another statute would 
15

“frustrate rather than advance the policies underlying federal immigration law” 

(id., at p. 19). In effect, the majority rejects the highest federal tribunal‟s 

assessment of what would unacceptably undermine Congress‟s immigration 

purposes and priorities, in favor of its own views on that subject.

None of this is persuasive. Whatever distinctions exist between the NLRA 

and FEHA, and between tension among federal policies on the one hand, and 

competing state and federal policies on the other, any such differences are 

insignificant for purposes of the issue before us. The United States Supreme Court 

— the final judicial authority on the meaning and scope of federal statutory law —

has told us of a particular situation in which a legislative policy of worker 

protection must yield to the overriding aims of the federal immigration statutes. It 

has said specifically that awarding post-termination pay to an illegal alien for 

“work not performed, for wages that could not lawfully have been earned, and for 

a job obtained in the first instance by a criminal fraud” (Hoffman, supra, 535 U.S. 

at p. 149) “runs counter to policies underlying IRCA” (ibid.) and “would trench 

upon explicit statutory provisions critical to federal immigration policy” (id., at 

p. 151).

These are declarations strong and clear enough to prevail over California‟s 

expression of its sovereign right and intention to protect unauthorized alien 

workers, and over any presumption against federal preemption of such a purpose. 

The high court‟s statements signal that any such award stands as an obstacle to the 

full accomplishment of Congress‟s aims, and is thus preempted. Even if the 

instant majority finds Hoffman‟s analysis unconvincing, it is not the majority‟s 

place to reject that analysis.

Thus, just as, in Hoffman, IRCA‟s policies were beyond the NLRB‟s 

“authority to enforce and administer” (Hoffman, supra, 535 U.S. at p. 149), so too 

are those policies beyond the administration and enforcement authority of this 
16

state and its laws. And just as the NLRB‟s authority, however broad, “to fashion 

remedies when dealing only with the NLRA” did not extend to an award that 

trenched upon an immigration statute beyond the Board‟s jurisdiction (id., at 

p. 152), so too, this state‟s undoubted authority to fashion remedies for violations 

of FEHA, when that statute is considered in isolation, does not extend to awards 

that would have, as the high court has concluded, a deleterious effect on a federal 

immigration statute beyond California‟s jurisdiction.5

I therefore find it manifest that California cannot award, as a remedy for 

wrongful termination under FEHA, lost wage damages to an alien who is 

unauthorized to work in this country, and who obtained the job at issue by 

submitting fraudulent eligibility documentation in direct criminal violation of 

federal immigration law. California cannot dictate otherwise through the adoption 

of a statute such as Senate Bill No. 1818. Thus, if further litigation establishes that 

this is plaintiff‟s situation, I believe his recovery of such lost wages attributable to 

any period after he was terminated from his employment will be preempted and 

barred.6

 

5 Of course, the NLRA, the statute at issue in Hoffman, contains no express 

provision, similar to that in Senate Bill No. 1818, that its protections extend fully 

to workers “regardless of immigration status.” If the NLRA did include such a 

declaration of Congress’s purpose, it might well have been held to prevail over the 

more general immigration principles the high court discerned in IRCA. But this 

does not mean California can effectively enact a statute that trumps those federal 

principles.

6 The majority in Hoffman squarely held that even if the employer‟s motives 

for terminating an employee were wrongful under a law unrelated to the worker‟s 

immigration status, a remedial award of lost wages for work not performed, to an 

unauthorized alien who obtained the employment by submitting fraudulent 

documentation in criminal violation of IRCA, and was never entitled to the job in 

the first place, unacceptably undermines the policies underlying this federal law. 

It does appear that in Hoffman, the employer was not aware of the employee‟s 

fraud and unauthorized alien status until after it fired him for union activity in 

(Footnote continued on next page.)
17

I stress the narrow scope of my conclusions. I go no further than the high 

court did in Hoffman. I do not suggest, for example, that California is federally 

barred from enforcing the right of an unauthorized alien worker, even one who 

obtained the job by fraud, to recover unpaid wages for work actually performed, or 

from extending to unauthorized aliens, even those who misrepresented their 

immigration status, the remedies it affords to workers who were injured or 

wronged while performing the work they were hired to do. Hoffman did not 

address those situations, and logical distinctions between those cases, and the one 

at issue here, come easily to mind. Hoffman concluded that federal immigration 

policy is undermined when an alien who is unauthorized for employment, and who 

obtained it by criminal means, seeks unearned wages for being terminated from

the job he or she was never entitled to have, and for work he or she thus did not

perform. It is reasonable to conclude that such a claim, if honored, more directly 

and unjustifiably rewards the alien‟s unauthorized and fraudulently procured 

employment, contrary to IRCA‟s aims, than does a claim based on fair and just 

compensation under state law for injury sustained on the job itself.7

 

(Footnote continued from previous page.)

violation of the NLRA. (Hoffman, supra, 535 U.S. at p. 141; see also id., at p. 155 

(dis. opn. of Breyer, J.).) But the Hoffman majority gave no dispositive effect in 

its analysis to the employer’s compliance or noncompliance with IRCA, even 

though the dissent specifically urged the relevance of this factor (Hoffman, supra, 

at pp. 155-156 (dis. opn. of Breyer, J.)). I therefore do not read the rule of 

Hoffman to apply only to IRCA-compliant employers, though some post-Hoffman

decisions in other jurisdictions have inferred such a corollary. (See fn. 5, post.) 

Employers who illegally hire unauthorized aliens are, of course, subject to 

substantial penalties under IRCA itself. (See 8 U.S.C. § 1324a(e)(4)(A)(i)-(iii), 

(5).)

7 The most pertinent post-Hoffman out-of-state decision disclosed by my 

research is in general accord with my conclusion. In Crespo v. Evergo Corp.

(N.J.Super. 2004) 841 A.2d 471, the court held that, under Hoffman, an 

(Footnote continued on next page.)
18

 

(Footnote continued from previous page.)

unauthorized alien worker who submitted fraudulent documentation to an unaware 

employer to obtain the job, and then, in violation of a state antidiscrimination law, 

was terminated after taking maternity leave, could not recover lost wage or other 

monetary damages arising from the wrongful termination. (Crespo, supra, at 

pp. 473-476.) Crespo limited its holding to recovery specifically sought as 

damages for loss of a position to which the alien was never entitled, and left open 

the possibility that IRCA would permit an unauthorized alien worker‟s monetary 

recovery under state law for employment-related physical injury or other wrongs 

he or she suffered while on the job. (See id., at pp. 475-476.) Post-Hoffman cases 

from other jurisdictions have reached varying conclusions as to whether the 

rationale of Hoffman completely or partially bars unauthorized alien workers from 

compensation for employer safety violations, workplace injuries, or other tortious 

harm affecting a worker‟s earning capacity. (See, e.g., Madiera v. Affordable 

Housing Foundation, Inc. (2d Cir. 2006) 469 F.3d 219, 231-232 [where employer, 

not undocumented alien worker, was in violation of IRCA, and jury was instructed 

to consider alien‟s deportability, federal immigration law did not absolutely bar 

worker injured in worksite accident from recovering tort-based future earnings 

damages at United States rates]; Majlinger v. Cassino Contracting Corp.

(N.Y.App.Div. 2005) 802 N.Y.S.2d 56, 61-64 [IRCA did not bar subcontractor‟s

undocumented alien employee from recovering against employer, contractor, or 

site owner for workplace injury], but see id., at p. 66 [noting plausible distinction 

between wrongful termination case, where “employer unwittingly had a valid 

reason for taking precisely the action it took,” and case of workplace injury, where 

employer had no right whatsoever to withhold safety devices required by state 

law]; Correa v. Waymouth Farms, Inc. (Minn. 2003) 664 N.W.2d 324, 329 [IRCA 

did not preempt states‟ rights to award worker‟s compensation benefits]; compare 

with, e.g., Wielgus v. Ryobi Technologies, Inc. (N.D.Ill 2012) 875 F.Supp.2d 854, 

862-864 [predicting Illinois Supreme Court would conclude, under Hoffman, that 

undocumented alien injured in workplace accident by allegedly defective product 

may recover damages for lost earning capacity only at rates applicable to country 

of origin, not at United States rates]; Veliz v. Rental Service Corp. USA, Inc.

(M.D.Fla. 2003) 313 F.Supp.2d 1317, 1335-1336 [under Hoffman, lost United 

States wages could not be recovered in tort on behalf of unauthorized alien who, 

having procured employment by submitting fraudulent papers, was killed in 

workplace forklift accident]; Rosa v. Partners in Progress, Inc. (N.H. 2005) 

868 A.2d 994, 998-1002 [unauthorized alien who committed fraud to obtain 

employment generally may recover tort-based earning capacity damages for 

workplace injury only at rates applicable to country of origin, since United States 

earnings would have continued only by virtue of illegal employment, but employer 

(Footnote continued on next page.)
19

Nor do I foreclose the possibility that a criminally fraudulent unauthorized 

alien worker who was wrongfully terminated in violation of FEHA may 

nonetheless be able to pursue other remedies available under this statute. Such 

remedies might include injunctive relief, costs and attorney fees, and even 

exemplary damages intended not as compensation to the worker for loss of the job, 

but purely as a sanction against an employer whose malice is established. These, 

too, are issues not addressed in Hoffman, and they do not as directly implicate the 

high court‟s concern that such a worker not be allowed to recover post-termination 

earnings for a job to which he or she was never entitled.8

As I have indicated above, it appears clear from the instant record that 

plaintiff used a false Social Security card and number to obtain employment with 

defendant, but the evidence on summary judgment does not establish whether 

plaintiff is actually an alien unauthorized to work in the United States. Because 

application of the preemption rule I derive from Hoffman depends on a 

determination of that issue, and because plaintiff‟s immigration status may not 

necessarily bar him from pursuing a FEHA claim in some form, I concur in the 

reversal of the summary judgment for defendant.

BAXTER, J.

I CONCUR:

CHIN, J.

 

(Footnote continued from previous page.)

who hired alien in violation of IRCA‟s knowledge or verification requirements 

cannot bar alien‟s recovery at United States rates].)

8 In addition to a claim for lost wages, plaintiff‟s amended complaint also 

includes a prayer for exemplary damages, “general damages,” and “such other and 

further relief as is just.”
1

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Salas v. Sierra Chemical Co.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 198 Cal.App.4th 29

Rehearing Granted

__________________________________________________________________________________

Opinion No. S196568

Date Filed: June 26, 2014

__________________________________________________________________________________

Court: Superior

County: San Joaquin

Judge: Elizabeth Humphreys

__________________________________________________________________________________

Counsel:

Pine & Pine, Norman Pine; The Legal Aid Society-Employment Law Center, Christopher Ho, Araceli 

Martínez-Olguín, Marsha J. Chien; Rancaño & Rancaño, David Rancaño; Stevens Law and Margaret P. 

Stevens for Plaintiff and Appellant.

Cynthia L. Rice, Kate Hegé and Julia L. Montgomery for California Rural Legal Assistance, Inc., 

California Rural Legal Assistance Foundation, The Asian Law Caucus, Inc., Asian Pacific-American Legal 

Center of Southern California, Golden Gate Women‟s Employment Rights Clinic, Legal Aid of Marin, 

Worksafe, Inc., Centro de los Derechos del Migrante, Inc., California Employment Lawyers Association, 

Labor and Employment Committee of the National Lawyers Guild, UFCW Local 5, SEIU Local 1021 and 

SEIU-USWW as Amici Curiae on behalf of Plaintiff and Appellant.

Julia Harumi Mass; Jennifer Chang Newell, Taylor & Company Law Offices, Stephen E. Taylor, Stephen 

McG. Bundy and Joshua R. Benson for The American Civil Liberties Union, American Civil Liberties 

Union of Northern California, American Civil Liberties Union of Southern California and American Civil 

Liberties Union of San Diego and Imperial Counties as Amici Curiae on behalf of Plaintiff and Appellant.

Della Barnett, Michael Caesar; Eunice Hyunhye Cho; Linton Joaquin, Karen C. Tumlin and Josh Stehlik 

for Impact Fund, National Employment Law Project, National Immigration Law Center, Bet Tzedek, 

Community Legal Services in East Palo Alto, Coalition for Humane Immigrant Rights of Los Angeles, 

Disability Rights Education & Defense Fund, Disability Rights Legal Center, Dolores Street Community 

Services, Immigrant Legal Resource Center, Immigration Center for Women and Children, Lawyers‟ 

Committee for Civil Rights of the San Francisco Bay Area, Public Advocates, Inc. Public Counsel and 

Public Law Center as Amici Curiae on behalf of Plaintiff and Appellant.

Beeson, Tayer & Bodine and Jason Rabinowitz for Raquel Aldana, Keith Cunningham-Parmeter, Ruben 

Garcia, Kate Griffith and Leticia Saucedo as Amici Curiae on behalf of Plaintiff and Appellant.
2

Page 2 – S196568 – counsel continued

Counsel:

William A. Herreras; Remcho, Johansen & Purcell, James C. Harrison and Margaret R. Prinzing for 

California Applicants‟ Attorneys Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Freeman D‟Aiuto Pierce Gurev Keeling & Wolf, Freeman Firm, Arnold J. Wolf, Thomas H. Keeling and 

Michael N. Morlan for Defendant and Respondent.

Proskauer Rose and Harold M. Brody for Employers Group as Amicus Curiae on behalf of Defendant and 

Respondent.
3

Counsel who argued in Supreme Court (not intended for publication with opinion):

Christopher Ho

The Legal Aid Society-Employment Law Center

180 Montgomery Street, Suite 600

San Francisco, CA 94104

(415) 864-8848

Arnold J. Wolf

Freeman Firm

1818 Grand Canal Boulevard, Suite 4

Stockton, CA 95207

(209) 474-1818