SALAS v. SIERRA CHEMICALAppellant’s Reply to Supplemental BriefCal.June 11, 2013Case No. $196568 IN THE SUPREME COURT OF CALIFORNIA SUPREME COUR’ VICENTE SALAS, FIL ED. Plaintiffand Appellant, V. SIERRA CHEMICAL COMPANY, Defendant and Respondent. JUN 11 2013 Frank A. McGuire Clerk Deputy APPELLANT’S RESPONSE TO RESPONDENT’S SUPPLEMENTAL BRIEF Appeal from the Court of Appeal Third Appellate District, Case No. C064627 Superior Court of California, County of San Joaquin Superior Court Case No. CV033425 Christopher Ho, SBN 129845 David C. Rancafio, SBN 121000 Marsha J. Chien, SBN 275238 1300 10th Street, Suite C The LEGAL AID SOCIETY- Modesto, CA 95354 EMPLOYMENT LAW CENTER Telephone: (209) 549-2000 180 Montgomery Street, Suite 600 San Francisco, CA 94104 Norman Pine, SBN 67144 Telephone: (415) 864-8848 14156 Magnolia Blvd., Suite 200 Sherman Oaks, CA 91423 Telephone: (818) 379-9710 Attorneysfor Plaintiffand Appellant VICENTE SALAS TABLE OF CONTENTS TABLE OF AUTHORITIES 0.00000... ccccceccsceeeeseeeeneetenseenteenenes il INTRODUCTION00... cccccccccceccccccceeceseeeeseeeeeesaceesaneesecaeeeeecsueeseateenaes 1 ARGUMENT.....occccecccccccccesccceeeeseneeeseseesececaeeeesaecsaneeeseaeeenaeeeeessasersnes 1 I. Sierra’s Near-Total Reliance on Hoffman is Umavalimg ..0.... cece ccccccccceecseesceceseeseneeceesaeeesesseaeesscaeeesseeeeeaees 2 IL. SB 1818 Does Not “Allow” An Activity ThatIs Prohibited by Federal Law .............. ccc cccccccceestesecesseeeeeenes 6 III. SB 1818 Does Not Conflict With the Conduct of Foreign Affairs ooo...eeeceseeeeseeeeseeeeeeeeceeeeaeeesesseeeaeeeeenaes 7 CONCLUSION....00oo. ee ccccceeccesecesececeeseeceaecnneecsneeseceeseeaneessaeeseeetsneeeeees 9 CERTIFICATE OF WORD COUNT.....0...ccccceeeccetceeeetetetetees 10 TABLE OF AUTHORITIES STATE CASES Jevne v. Superior Court (2005) 35 Cal.4th 935 occccccccsssecssseceeseeeeees 1 Olszewski v. Scripps Health (2003) 30 Cal.4th 798 0... ccccccecseeseeeees 6 Viva! International Voicefor Animals v. Adidas Promotional Retail Ops., Inc. (2007) 41 Cal.4th 929 ooo. eeeeeeesteeeteees 1,7,8 STATE STATUTES Cal. Penal Code § 6530 .......cccccccccssssssessereesseeeeesacecesseeeseeeeessseeseesseseeeees 8 California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900 ef S€qQ.....ccccciccesccesestssseeesseesseesseneesseseesseeees 3,4 SB 1818 (codified inter alia at Cal. Lab. Code § 1171.5) w.....passim FEDERAL CASES Arizona v. United States (2012) 567 U.S.132 S.Ct. 2492... 1,6 Madeira v. Affordable Housing Fdn., Inc. (2d Cir. 2006) A69 F.3d 219cee cecccecsscteeseeeseescseeesesenecsecseeeasesecsessseeeeseesseeeeasenes 5 NLRB v. A.P.R.A. Fuel Oil Buyers Group (2d Cir. 1997) 134 F.3d 50... cccccccceesesseeseecesseeseceneeeeeessesseeseeeseeseeeessrsseesseesseeesees 5 Toll v. Moreno (1982) 458 U.S. 1 c.eceecececccccceseceneeeeseeeseeeseeessneenseeeeeaes 8 Hoffman Plastic Compounds, Inc. v. NLRB (2002) S35 US. LSTeee eceeecscceseeeeceeeeeseceneeessnneecesseeeecseeesneeeeesneeensas passim FEDERAL STATUTES Immigration Reform and Control Act (“IRCA”), Pub.L. 99-603, 110 Stat. 3359oeceecceeeeseesneeceeeeeeeeseaseesessenecseeeseeeeaeenaeespassim National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151 et seq. bsueeaeecaeaeaceaeaececseesesessecesecseeseaeensaeceesseceaeedseeaeenesaeseseeesestenseens 2,3 OTHER FEDERAL AUTHORITIES H.R. Rep. No. 99-682(I]), reprinted in U.S. Code Cong. & Admin. News 5649 .......cccceccccsscccesssecesseecesseesseeeesseessseessatecsenseesees 4 INTRODUCTION In its supplemental brief, Defendant and RespondentSierra Chemical Company contendsthat this Court should find that SB 1818 conflicts with and is thus preempted by IRCA. The difficulty with this proposition, however, is that there exists nothing in law orfact to support it. ARGUMENT Sierra makes no argument that IRCA expressly preempts SB 1818, and further concedesthat there is no basis for a finding offield preemption.’ Accordingly,it “suggests that the law in question should be examined through the prism of conflict and obstacle preemption”. ' Respondent’s Supplemental Brief (“RSB”) at 4-5. Id. at 5. Sierra treats “conflict preemption” and “obstacle preemption”as different preemption analyses. (See, e.g., RSB at 3, 5, 18.) Because someauthorities treat the latter as a subset of the former (see, e.g., Jevne v. Superior Court (2005) 35 Cal.4th 935, 949-50; Arizona v. United States (2012) 567 U.S. at, 132 S.Ct. 2494, 2501), and for simplicity’s sake, this brief will refer to “conflict” in responding to Sierra’s arguments that SB 1818 conflicts with IRCA and/or is an obstacle to it. But cf: Viva! International Voicefor Animals v. Adidas Promotional Retail Ops., Inc. (2007) 41 Cal.4th 929, 935 n.3 (“The categories of preemption are not ‘rigidly distinct.’’ ... As conflict and obstacle preemption are analytically distinct .. . we treat them as separate categories here.’’) (citations omitted). I. Sierra’s Near-Total Reliance on Hoffmanis Unavailing In asserting that SB 1818 — and, by extension, the substantive state law workplace protectionsthat it reaffirmed for undocumented workers — is preempted by IRCA,Sierrarelies virtually exclusively on Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, which found that the National Labor Relations Board (“NLRB”) exceededits discretion in awarding backpay to an undocumented worker as a remedy for his employer’s unlawful labor practices under the National Labor Relations Act (““NLRA”). Sierra notes that Hoffman found such backpay awardsto be “counter to” IRCA’s purposesin that those awards “condone[{d]” unlawful conduct. The essence of Sierra’s argumentis contained in the following paragraph: The same considerations apply to an award of compensatory damages to an undocumented workerfor a violation of state labor or employmentlaws. Only by illegally remaining in the United States could an undocumented worker qualify for an award of compensatory damages. A state law that provided for an award would condone and encouragefuture violations. This represents both a conflict with and an obstacle to the central tenet of the IRCA. (RSB at 15-18.°) * In its brief, Sierra discusses whether awards of“compensatory damages” are preempted by IRCA (emphasis added). (See, e.g., RSB at 3, 12, 14, 17, 18.) For purposes of this responsive brief, Appellant will assumethat Sierra is in fact referring thereby to “compensatory remedies” as specified in the Court’s February 27, 2013 Order This conclusory statement — unsupported by anything other than a series of block quotations lifted from Hoffman, unaccompanied by any analysis — does not make any effort to explain why the FEHA antidiscrimination remedies reaffirmed by SB 1818 conflict with IRCA. Sierra, for one, does not explain how providing state law remedies for the disability discrimination alleged here in fact “condone[s] and encouragef{s] future violations.” Nor doesit explain why “the same considerations” that preclude NLRA administrative backpay awards to undocumented workers wouldalso barthecivil remedies for employmentpractices that this State, in the exercise of its police powers, has declared unlawful — particularly given the important presumption against preemption, which Sierra concedes.” Likewise, Sierra wholly fails to acknowledge that the underlying statute at issue here — the FEHA — is a court-enforced Statecivil rights law that, unlike the NLRA,dependscritically upon private - enforcement and an array ofcivil remedies to achieve its purposes.” In short, it fails to explain how Hoffman, a case that turned on the NLRB’s lack of discretion to decide whether an award of backpay was “counter to” IRCA, provides useful guidancein the present case.° directing this supplemental briefing, which remedies would interalia include backpay, compensatory damages, and punitive damages. See, e.g., RSB at 2,6. > See, e.g., Appellant’s Supplemental Brief (“ASB”) at 20-21. ° Id. at 142-43 (announcing,at the outset ofits analysis, “This case exemplifies the principle that the Board’s discretion to select and Similarly, Sierra neglects to explain how Hoffman supports the idea, for purposes ofpreemption analysis, that there 1s an actual conflict between IRCA and SB1818 such that the remedies that SB1818 reaffirms cannot possibly stand. Asset forth in Appellant’s Supplemental Brief, IRCA and SB 1818 do not conflict with each other.’ And certainly Congress saw no conflict with State workplace laws whenit enacted IRCA;to the contrary, it was crystal clear that existing State employment protections and remedies were to remain undisturbedand in full force as a necessary complement to IRCA: “To do otherwise would be counterproductive of our intent to limit the hiring of undocumented workers and the depressing effect on working conditions caused by their employment.” Sierra likewise makes no attempt to explain away the perverse - economic incentives to hire unauthorized workers that would result from leaving them unprotected from employerdiscrimination.” As Congress explicitly observed, eliminating such incentives would obviate conflict with IRCA, not create it. Nor does Sierra address the fallacy of assuming that unauthorized workers are drawn to the United fashion remedies for violations of the NLRA, though generally broad, is not unlimited.”) (citations omitted). 7 ASB at 7-15. ’ HR.Rep. No. 99-682(II) at 8-9, reprinted in U.S. Code Cong. & Admin. News 5649, 5758; see also ASBat 6 and authorities cited there. ° See, e.g., ASB at 10-13. States in hopes of being discriminated against and,as a result, winning the opportunity to attempt to obtain remedies for their harms through the legal system.'° Finally, Sierra parrots Hoffman’s language in asserting that “Tojnly by illegally remaining in the United States could an undocumented worker qualify for an award of compensatory damages.” (RSB at 17.) But in so doing, Sierra fails to recognize that neither backpay, nor compensatory or punitive damages, nor any other compensatory, “make whole” remedies require (as does reinstatement) a prevailing plaintiff's future unauthorized presence in the United States.'’ See, e.g., NLRB v. A.P.R.A. Fuel Oil Buyers Group (2d Cir. 1997) 134 F.3d 50, 58 (“the backpay order does not require the reestablishment of an employmentrelationship in contravention of IRCA. Instead, it simply compensates Benavides and Guzmanfor the economic injury they suffered as a result of the Company's unlawful discrimination against them.”’) (abrogated on other grounds, Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137; discussed at Madeira v. Affordable Housing Fdn., Inc. (2d Cir. 2006) 469 F.3d 219, 233). 10 See ASB at 23 and authorities cited at n.27. '' Sierra quotes Hoffman’s statement that “[i]ndeed, awarding backpay . . . condones and encouragesfuture violations.” (RSB at 17.) But the Hoffman majority wasreferring to situations in which a worker might have been detained by immigration authorities or voluntarily left the United States. (535 U.S. at 150.) For these reasons, Hoffman does not support a conclusion that SB 1818 is conflict preempted by IRCA.” Il. SB 1818 Does Not “Allow” An Activity That Is Prohibited by Federal Law Sierra devotes a section ofits brief to arguing the generally unremarkable proposition that “a state law that allows an activity that is prohibited by federal law 1s preempted.” (RSB at 8-12.) But to the extent that Sierra contends that SB 1818 somehow “allows”activity prohibited by IRCA,this argumentis astoundingly misdirected. SB 1818, of course, in no way purports to make legal or otherwise permit the knowing employmentofunauthorized workers. It simply reaffirms the existence of rights and remediesthat those '? The cases discussed by Sierra in which state law was found preempted are not useful here. For example, in Olszewski v. Scripps Health (2003) 30 Cal.4th 798, Medicaid’s legislative history made clear that it prohibited burdening “needy” beneficiaries with health care costs. Jd. at 819. Thus, this Court had no trouble finding that Medicaid preempted a California law that would allow health providers to collect liens on Medicaid beneficiaries. /d. Here, in contrast, IRCA’s legislative history addresses Federal and State workers’ rights only in orderto reaffirm their continuingvitality. ASBat 6. Likewise, Arizona v. United States (2012) 567 U.S. _, 132 S.Ct. 2492 found provisions of Arizona state law preempted insofar as they encroached on the federal government’s exclusive powerto regulate alien registration, and conflicted with federal law by deputizing state officials to act as immigration officials and creating criminal penalties for working without authorization where Congress had manifested an opposite intent. By comparison, SB 1818 neither encroaches upon federal immigration authority nor conflicts with Congressionalintent. workers have against an employer who hasviolated this State’s employment and labor laws. Nothing about SB 1818 or the remedies it preserves “allows” the unlawful employment of undocumented workers any more than the existence of penalties for any sort of unlawful behavior somehow “allows” or otherwise condones any aspect of that behavior. Certainly, it 1s difficult to see how reaffirming penalties for law-breaking employers who would exploit undocumented persons somehow connotesa license by the Legislature for those employers to hire them. And as already described, the denial of equal remedies to those workers would encouragetheir hiring and, if anything, serve to perpetuate IRCA violations. No conflict is present here. Hl. SB1818 Does Not Conflict With the Conduct of Foreign Affairs Sierra appears to concede that the presumption against preemption applies here. (See RSB at 8 [acknowledging that Arizona, an immigration case, recognizes a presumption against preemption, and stating that “Sierra Chemical suggests that the foreign affairs exception [to that presumption] ... does not apply here’’]). But even were Sierra to contend that no presumption should apply here because immigration policy is related to foreign affairs, that argument would “qe 1 be unavailing. 'S The sole decisionit cites to in this regard, Viva! International Voicefor Animals v. Adidas Promotional Retail Ops., Inc. (2007) 41 Cal.4th 929, observes only that “where a traditional state exercise of the police power implicatesforeign affairs concerns, no particular It is undisputed that federal immigration law is related to and may implicate many aspects of the foreign affairs of the Nation. See, e.g., Toll v. Moreno (1982) 458 U.S. 1, 10. But Sierra does not explain how SB /8/8 constitutes a regulation of foreign affairs, let alone one that would conflict with the federal government’s primacy in that area. As discussed supra, however, SB 1818 is not an immigration law; it does not purport to “allow” the employment of unauthorized workers, or to affect in any mannerthe terms upon which immigrant workers are admitted to the United States or deported therefrom. If anything, Congress in 1986 madeplain that the preservationof State workplace rights and remedies for undocumented workers — which SB 1818 effects — was consistent with and, indeed, wasa critical element in advancing IRCA’s goals of stemming unlawful immigration to the United States. As such, there is no cognizable argument that SB 1818 is preempted as conflicting with the federal government’s conduct of foreign affairs. \\\ \\ \ presumption applies.” (Id. at 939; emphasis added.) Indeed,after applying ordinary preemption principles, Viva! ultimately concluded that Cal. Penal Code § 6530, which bars the importation into California of products made inter alia from kangaroo, was not preempted by the federal Endangered Species Act becauseit neither conflicted with nor posed an obstacle to the federal policy reflected therein. Viva! thus lends scant support to any notion that SB 1818 is preempted on “foreign affairs” grounds. CONCLUSION Sierra has provided no reason to discern any conflict between SB 1818 and IRCA,let alone any conflict that would counsela drastic finding of preemption. Its invitation to find that IRCA preempts SB 1818 on that basis should, therefore, be declined. Dated: June 11, 2013 Respectfully submitted, David C. Rancaiio RANCANO & RANCANO Christopher Ho Marsha J. Chien The LEGAL AID SOCIETY — EMPLOYMENT LAW CENTER Norman Pine PINE & PINE CHRISTOPHER HO Attorneys for Petitioner and Appellant VICENTE SALAS CERTIFICATE OF WORD COUNT Pursuant to Rule 8.520(c)(1) of the California Rules of Court, I certify that this Appellant’s Response to Respondent’s Supplemental Brief contains 1,989 words, exclusive of the caption page,tables of contents and authorities, signature blocks, and this Certificate and that appearing on the page following. Dated: June 11, 2013 Respectfully submitted, David C. Rancafio . RANCANO & RANCANO Christopher Ho Marsha J. Chien The LEGAL AID SOCIETY — EMPLOYMENT LAW CENTER Norman Pine PINE & PINE By: CHRISTOPHER HO Attorneys for Plaintiff and Appellant VICENTE SALAS 10 CERTIFICATE OF SERVICE I, PAMELA MITCHELL,declare: I am a citizen of the United States, over 18 years of age, employed in the County of San Francisco, and not a party to or interested in the within entitled action. I am an employee of THE LEGAL AID SOCIETY - EMPLOYMENT LAW CENTER,and mybusiness address1s 180 MontgomeryStreet, Suite 600, San Francisco, CA 94104. On June 11, 2013, I served the within: APPELLANT’S RESPONSE TO RESPONDENT’S SUPPLEMENTAL BRIEF X_ by US. mail to the persons and at the addresses set forth below: Arnold J. Wolf FREEMAN FIRM 1818 Grand Canal Boulevard, Suite 4 Stockton, CA 95207 Attorneysfor Defendant and Appellee Sierra Chemical Company Attorneysfor Amicus Curiae: Harold M. Brody,Esq. Proskauer Rose LLP 2049 Century Park East, Ste 3200 Los Angeles, CA 90067 Eunice Hyunhye Cho, Esq. National Employment Law Project 405 14th Street, Suite 1400 Oakland, CA 94612 Jason Rabinowitz, Esq. Beeson, Tayer & Bodine 483 Ninth Street, 2 Floor Oakland, CA 94607-4051 Proof of Service Appellant’s Response to SupplementalBrief Clerk’s Office Third Appellate District 621 Capitol Mall, 10th Floor Sacramento, CA 95814 Clerk’s Office San Joaquin Superior Court 222 E. Weber Avenue Stockton, CA 95202 Della Barnett, Esq. _ Michael Caesar, Esq. Impact Fund 125 University Avenue, Suite 102 Berkeley, CA 94710 Linton Joaquin, Esq. Karen C. Tumlin, Esq. Josh Stehlik, Esq. National Immigration Law Center 3435 Wilshire Boulevard, Ste 2850 Los Angeles, CA 90010 Case No. $196568 Jennifer Chang Newell, Esq. James C. Harrison, Esq. American Civil Liberties Union Margaret R. Prinzing, Esq. Foundation Remcho, Johansen & Purcell, LLP Immigrants' Rights Project 201 Dolores Avenue 39 Drumm Street San Leandro, CA 94577 San Francisco, CA 94111 William A. Herreras, Esq. Stephen E. Taylor, Esq. P.O. Box 387 Stephen McG. Bundy,Esq. Grover Beach, CA 93483 Joshua R. Benson, Esq. Taylor & Company Law Offices Cynthia L. Rice, Esq. OneFerry Building, Suite 355 Kate Hege, Esq. San Francisco, CA 94111 California Rural Legal Assistance 631 Howard Street, Suite 300 Julia Harumi Mass,Esq. San Francisco, CA 94105 American Civil Liberties Union Foundation of No. California, Inc. Julia L. Montgomery, Esq. 39 DrummStreet California Rural Legal Assistance San Francisco, CA 94111 Foundation 2210 K Street, Suite 201 Sacramento, CA 95814 I declare underpenalty of perjury under the laws ofthe State of California that the foregoingis true and correct. Executedon-June 11, 2013. a \-PAMELA MITCHELL Proof of Service Case No. $196568 Appellant’s Response to Supplemental Brief 2
