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Supreme Court Rules On Illegal Alien Right to Back Pay

Good morning, dear readers!

Your humble blogger had another blog post prepared for you this morning, but news of the Supreme Court’s opinion in Salas v. Sierra Chemical Co. mandated an immediate post, because this is very good news!  Some of my readers may recall this blog post on the same case.

The facts are pretty simple.  Salas used a stolen social security number to lie his way onto a job. After several years working for Sierra as a seasonal employee, he hurt his back while stacking crates.  He filed a workers’ comp claim but continued to work modified duty.  When he was laid off with the end of the season, things continued as normal, until his employer refused to hire him back.

During the trial proceedings in civil court, Salas noted that he would testify, but would assert the 5th Amendment Privilege against self-incrimination if asked about his immigration status.  This prompted the employer to investigate his immigration status, leading to the discovery that Salas was in the country illegally.

So, what do you think, dear readers – to what benefits should Mr. Salas be entitled?  Back pay? Reinstatement? Penalties?

The Supreme Court held that an illegal alien is not entitled to back pay as a remedy under Fair Employment and Housing Act (and presumably under Labor Code section 132a) only for that period of time after the employer discovered the employee was ineligible to work in the United States.

It seems a foregone conclusion that reinstatement is not a remedy for a person without the right to work in the United States.

There have been other cases on this point as well, but this is, to some extent, a win for employers.  Once it is discovered that the injured worker does not have the right to work in the United States, backpay is in the crosshairs.  And, even if the employee is not actually back to work, conceivably, proof that the employer could accommodate modified duty, if not for the employee’s immigration status, should put temporary disability on the chopping block as well.

Finally, the immigration status should also play into liability for 132a penalties.  After all, if the applicant had no right to reinstatement, how was he harmed by not being returned to work? If he was not harmed, why the penalties?

Have a great weekend, dear readers!

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