Undocumented workers may not collect damages for discrimination in refusing to hire or discrimination in firing if the worker has knowingly used a false social security number, and if the employee presents no evidence that the employer routinely hired undocumented workers knowing their identifying information to be false.
Also, the California Court of Appeal held that Senate Bill 1818 did not create a special exemption for undocumented workers to bring wrongful refusal to hire or wrongful termination claims. The Court held Senate Bill 1818, in making undocumented status irrelevant to the enforcement of the anti-discrimination laws, simply reaffirmed existing case law holdings. Those cases held generally that an undocumented worker could collect for unpaid wages, harassment, and other wrongs committed during the employment, but could not collect for damages for prospective earnings because of refusal to hire, or “back pay” because of alleged wrongful termination.
California Senate Bill 1818 specifically makes irrelevant a worker's immigration status to matters of discovery during litigation. That is, the employer may not require the employee in the lawsuit to disclose his undocumented status. This recent decision places that prohibition in question where the employee is an undocumented worker claiming wrongful termination. I infer from the decision if the employee is not claiming wrongful refusal to hire, or wrongful termination, but is limiting his or her claims to matters arising during the employment, such as unpaid wages or harassment, then the protections of SB 1818 would apply.
The basis of this article is the case of Salas v. Sierra Chemical Co. 2011 DJDAR 11941 (filed Aug. 9, 2011). The case is decided on the principles of the so-called “after acquired evidence rule” and the equitable principle of “unclean hands.” Both principles operate as defenses to claims for damages where the employer discovers after after the employee is fired (or not re-hired after a seasonal layoff) that the employee violated a company rule or policy. The employer must prove that the employer, if knowing of the violation, would not have hired the individual, or would have fired the individual immediately. Damages are cut off from the date the employer makes the discovery--hence, the phrase “after acquired evidence rule.”