Admissibility of a Plaintiff’s Immigration Status in California Employment and Personal Injury Cases
In California employment and personal injury litigation, the question often arises as to whether a plaintiff’s immigration status constitutes admissible evidence; and whether (or when) illegal immigration status might bar part or all of a claim for damages. Case law on this issue has developed, over the years, in both the employment and personal injury arenas: Pronouncements of the law in each field have impacted the other.
The latest significant development is the California Supreme Court’s decision in an employment law case, Salas v. Sierra Chemical Co., (2014) Cal. App.4th, 173 Cal.Rptr.3d 689.
The background of this issue goes back at least to the 1980s, with Rodriguez v. Kline (1986) 186 Cal.App.3d 1145, 1148, describing the “question regarding a plaintiff’s citizenship or lawful place of residence as one of law, to be decided exclusively by the trial court outside the presence of the jury.”
Historically, a personal injury plaintiff’s immigration status has been inadmissible, for most purposes. See Hernandez v. Paicius (2003) 109 Cal.App.4th 452, disapproved on other grounds in People v. Freeman (2010) 47 Cal.4th 993, 1006, footnote 4.
In Hernandez, a medical malpractice case, the defendant physician sought to introduce plaintiff’s alien status as character evidence to show a propensity to lie, and the court allowed the evidence before the jury. On review, the court held that plaintiff’s immigration status had no probative value regarding plaintiff’s veracity, and that it was highly prejudicial. So the appellate court held that the trial court had erred in allowing the evidence.
But there has long been an exception to the inadmissibility of such evidence: If the personal injury plaintiff sought recovery for future wage loss, the holding in Rodriguez calls for the trial court, in an in limine hearing prior to the jury trial, to determine whether the plaintiff was “subject to deportation.” Or, alternatively, whether the plaintiff had undertaken steps to cure the problem, such that he or she would be able to achieve compliance with the law during the relevant future time period.
Rodriguez held that the illegal status of the plaintiff (if such was found in the hearing by the trial court) would indeed be admissible evidence on the issue of future wage loss:
“If the court’s decision following this hearing is in the plaintiff’s favor, then all evidence relating to his alienage shall be excluded and his projected earning capacity may be computed upon the basis of his past and projected future income in the United States. Should the defendant prevail, then evidence of the plaintiff’s future earnings must be limited to those he could anticipate receiving in his country of lawful citizenship. Of course, in such an instance since the plaintiff’s status ordinarily would not be relevant to a determination of liability, he would be entitled to a limiting instruction to that effect.”
A significant development in this area occurred in 2002, in an employment case: The United States Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). The Court in Hoffman reversed an award of back pay to illegal immigrants who, in violation of the National Labor Relations Act, were terminated because of their participation in the organization of a union.
The precise question there was whether the NLRB had the authority to award back pay to undocumented workers, notwithstanding the prohibition on hiring such workers in the Immigration Reform and Control Act of 1986. The Supreme Court answered that question in the negative, relying on the policy goals of the immigration laws.
The California Legislature responded to Hoffman, enacting four almost identical remedial statutes, effective in 2003: Civil Code Section 3339(a), Government Code Section 7285(a), Health & Safety Code Section 24000 and Labor Code section 1171.5(a) (hereafter, the “Remedial Statutes”).
These code sections each included this sentence: “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.”
The next year, the Ninth Circuit, in Rivera v. NIBCO, Inc. (9th Cir. 2004) 364 F.3d 1057, 1072-1073, looked at the issue once again in another employment law context: Whether Hoffman’s bar on recovery by undocumented workers applied to their receiving federal Title VII benefits as well as state law remedies under the Fair Employment and Housing Act (FEHA) (Govt. Code, § 12900, et seq.).
Expressing doubts that benefits were so barred in light of the passage of the Remedial Statutes, the court denied the defendant’s request for discovery on plaintiffs’ immigration status, at least prior to determination of whether liability and damages would be bifurcated.
Around the same time, a California appellate court commented about the Remedial Statutes: “[T]he Legislature apparently felt strongly enough about the sensitive subject of immigration status to put essentially identical language in three separate statutes enacted shortly after this case was tried.”
Moreover, in Reyes v. Van Elk, Ltd. (2007) 148 Cal.App.4th 604, 615-618, another employment case, the appellate court permitted undocumented workers to recover damages for an employer’s failure to pay prevailing wages, citing the Remedial Statutes, particularly Labor Code Section 1171.5, as a basis for its decision.
Finally, the issue of potential preemption of all, or part, of the Remedial Statutes by the federal Immigration Reform and Control Act of 1986 (8 U.S.C.A. § 1101 et seq.) came to the fore this year, and became the primary basis for the California Supreme Court’s decision in Salas.
In Salas, a former employee brought an action against his former employer, alleging disability discrimination in violation of FEHA, and denial of employment in violation of public policy, after his employer failed to allow him to return to work after he suffered a back injury.
The trial court granted the employer’s motion for summary judgment, and the appellate court affirmed, because the employee had knowingly presented a false social security number when hired; according to the appellate court, the after-acquired evidence of his illegal status was a complete defense to the employee’s claims.
But the Supreme Court superseded the Court of Appeal decision, reconciling, via preemption analysis, the Remedial Statutes’ provision of all available remedies to undocumented workers with the federal prohibition against continuing to employ illegal immigrants.
It concluded that federal preemption prevented the award of back pay to undocumented workers only after the employer discovers the illegal worker’s status. Federal law did not preempt payment of an employee’s wages in the period prior to discovery of his or her illegal status: “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.”
So the upshot of Salas is that it maintains the right of employees, whose status is illegal, to bring FEHA actions and recover damages up until the date of the employer’s discovery of the employee’s illegal status; but it motivates an employer, facing a FEHA or wrongful termination claim, to ascertain early on any existing evidence of an employee claimant’s illegal immigration status, so that the employer can try to decrease the employee’s potential damages award.
The Salas decision therefore “ups the ante” for both sides in FEHA and wrongful termination claims. Undocumented workers may be more incentivized now to seek redress for wrongful employment practices, notwithstanding their immigration status, since they do have a right to recover damages up until the point their illegal status is ascertained by the employer; and employers will, earlier and more vigorously, attempt to ferret out evidence of an employee’s illegal immigration status, among other potential defenses, to decrease their exposure for damages.
Were the issue of a third party’s potential liability for an injured plaintiff’s future wage loss to arise now in a personal injury context, after Salas, plaintiff’s counsel would still argue that the injured party’s potential recovery for future lost earnings is, quoting the Remedial Statutes, a “remedy available under state law.”
Plaintiff’s counsel would also argue, raising technical arguments of statutory intention like those discussed by the Supreme Court in Salas, that there has been no federal preemption of the Remedial Statutes, as applied to future wage loss of a personal injury plaintiff.
Defense counsel would argue that the Rodriguez rule still applies, and future earnings evidence should be limited to the plaintiff’s country of legal residency.
Supportive of that contention would be that Hernandez cites with approval, in dicta, to Rodriguez’s distinction that immigration status is admissible when future wage loss is at issue.
But more significantly, Salas will be seized upon by the defense; it will argue that Salas’ logical extension in the personal injury context should be that Rodriguez remains in force and effect, in spite of the passage of the Remedial Statutes: That is, while plaintiff’s past U.S.-based earnings might be subject to full recovery, his or her future earnings should be limited to those obtainable in his or her country of lawful citizenship—just as an employee’s future earnings, post-discovery of illegal status, are now barred by Salas.
With Salas, the dust has cleared in the employment law area; only time will tell whether that decision suggests a resolution of this issue in the personal injury context as well.
Yen P. Chau practices civil litigation with a focus on employment law at Greenan, Peffer, Sallander & Lally, LLP in San Ramon. She is a member of the Board of the Employment Section of the Contra Costa County Bar Association.
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