California Employment Law Notes (July 2014)

"Unauthorized Alien" Who Provided False SSN Can Proceed With Disability Discrimination Lawsuit

Salas v. Sierra Chem. Co., 2014 WL 2883878 (Cal. S. Ct. 2014)

Vicente Salas worked on Sierra Chemical's production line, filling containers with various chemicals. At the time of his hire, Salas provided Sierra with a resident alien card and a Social Security card and signed an Employment Eligibility Verification Form (I-9 Form). After allegedly injuring his back several times and presenting doctors' notes restricting his ability to lift, stoop and bend, Salas was laid off in December 2006 as part of Sierra's annual reduction in its production line staff. Salas received a recall-to-work letter in May 2007, but Sierra did not permit him to return to work after he told the company he was "not completely healed." Salas subsequently filed a lawsuit against Sierra, alleging disability discrimination and denial of employment in violation of public policy.

After filing an in limine motion stating that he would assert his Fifth Amendment right against self-incrimination to any questions concerning his immigration status, Sierra discovered that the Social Security number ("SSN") used by Salas to secure employment belonged to a man in North Carolina. Summary judgment was eventually granted in favor of Sierra on the ground that it never would have hired or recalled Salas if it had known he was using a counterfeit SSN. However, in this opinion, the California Supreme Court reversed summary judgment and held that the federal Immigration Reform and Control Act preempts California's Fair Employment and Housing Act ("FEHA"), which protects employees regardless of their immigration status, only for lost-pay damages for the period of time after the employer discovers that the employee was ineligible to work in the United States. See also Serri v. Santa Clara Univ., 226 Cal. App. 4th 830 (2014) (after-acquired expert evidence that there were no adverse consequences resulting from employee's failure to perform his or her job duties did not preclude summary judgment for employer).

Employee Was Properly Limited To Just One Theory Of Age Discrimination At Trial

Rosenfeld v. Abraham Joshua Heschel Day School, Inc., 226 Cal. App. 4th 886 (2014)

Ruth Rosenfeld sued the day school where she had worked as a teacher for 35 years after her hours were reduced and she was allegedly forced to resign. Rosenfeld asserted that age discrimination was a motivating factor in the reduction of her hours, though the school asserted that Rosenfeld's hours were reduced because of a decline in student enrollment. Shortly after her resignation, Rosenfeld was replaced by another teacher who was in her mid-50's (slightly younger than Rosenfeld). A jury returned a verdict in favor of the school, and Rosenfeld filed this appeal, asserting that the trial court erred in not permitting her to put on a case of disparate impact in addition to disparate treatment - though all of her pleadings leading up to the trial only mentioned disparate treatment as her theory of discrimination. The Court of Appeal affirmed the trial court, holding that Rosenfeld had failed to provide timely notice to the school (i.e., before the close of discovery) that she would be pursuing a different theory of discrimination at trial. The appellate court found no error in various other rulings of the trial court, including permitting the school to put on evidence of Rosenfeld's failure to pursue its internal grievance procedure before filing suit.

Male Deputies Prohibited From Supervising Female Inmates Could Proceed With Sex Discrimination Case (Is Orange the New Black?)

Ambat v. City & County of San Francisco, 2014 WL 2959634...