Can an illegal alien, who obtained employment through fraud, prevail on a California Workers’ Compensation discrimination claim?  That’s the potentially tangential issue in a recent case, Salas v. Sierra Chemical Co.

California Labor Code § 132a prohibits discriminating against an employee for filing a workers’ compensation claim, or for participating in the workers’ compensation process, such as being a witness.  Liability for a Labor Code § 132a claim is not insurable.

In Salas, the Third Appellate District of the California Court of Appeals affirmed a trial judge’s granting of a motion for summary judgment, where the injured worker had acquired employment by using someone else’s social security number.

Salas was in a seasonal position and was laid off and re-hired on a regular basis.  At the end of one of such work periods, Salas injured his back (for the second time), and filed a workers’ compensation claim.

After the general workforce was recalled, Salas was told he could only have his old job back if he had no work restrictions.  Salas filed a civil lawsuit, alleging, among other claims, that Sierra “denied him employment to punish him for filing a claim for workers’ compensation benefits, and to intimidate and deter him and others from bringing such a claim.”

Interestingly enough, an EAMS search shows that the case settled by compromise and release in 2008, but does not reflect a Labor Code § 132a claim.

The appellate district affirmed the granting of defendant’s motion for summary judgment.  Responding favorably to the assertion that Sierra would never have hired Salas had it known about his fraudulent application, the trial judge and the appellate district found for defendant.

One caveat to this is that the facts in this case suggested that Sierra did not know that Salas was using another person’s social security number.  Had there been evidence of Sierra’s knowledge of the same, the case would have probably gone differently.

Salas still has time to appeal, but for now, this case presents an interesting opportunity to test a defense to Labor Code § 132a claims.  How the typical Workers’ Compensation Judge, and, more importantly, the typical Workers’ Compensation Appeals Board panel, will respond to this argument, will only be revealed by time.