SALAS v. SIERRA CHEMICAL

Appellant’s Supplemental Brief

Cal.May 28, 2013

Case No. 8196568 IN THE SUPREME COURT OF CALIFORNIA SUPREME COURT VICENTE SALAS, Fe L f= > Plaintiffand Appellant, v MAY 2.8 2013 SIERRA CHEMICAL COMPANY, Defendant and Respondent. Frank A, McGuire Clerk Deputy APPELLANT’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 Araceli Martinez-Olguin, SBN 235651 RANCANO & RANCANO MarshaJ. 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 Case No. 8196568 IN THE SUPREME COURT OF CALIFORNIA VICENTE SALAS, Plaintiffand Appellant, V. SIERRA CHEMICAL COMPANY, Defendant and Respondent. APPELLANT’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 Araceli Martinez-Olguin, SBN 235651 RANCANO & RANCANO 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....oceceeeeccee cence reeeeesneeeraeeessasesseeenes ii INTRODUCTION 00....icccccccccceceececeereeeceneeeeeeneseearesesnnscesneneseseuesseseeaen 1 ARGUMENT...........cccccccccccecceeeceeseeeeeereneeccneeessneeeeesssensneeeseesecessseesesnueeeseneeson 1 I. The Applicable Law .0000......ccccece ee eens eeeeeeeeetenseneneenes 1 II. SB 1818 Is Not Preempted By Federal Immigration LAW 0. eeccceeecceceeeseeceetnneesessneecssecessaeeesssscesseeeeerseseresnesseneeeeseneass 2 A. Federal Immigration Law Contains No Express Preemption Language Applicable to SB 1818 «0.0.0.0... 2 B. Nothing in IRCA Supports a Finding of Either “Field Preemption” or “Conflict Preemption”................. 4 1. Congress Did Not Intend, Through IRCA,to Supplant the Historic Police Powers of the States to Protect Workers.................cccccccsesseeeeeeeneeetenees 4 2. SB 1818 Does Not Conflict With Federal Immigration Law ..00..... cee eee cence eeeeeeteesneetenaeeereneeees 7 a. Compliance With Both SB 1818 and IRCAis Not a “Physical Impossibility” .......00000.ee 8 b. SB 1818 Is Not An “Obstacle” to Achieving IRCA/’s Objectives; Instead, It Helps to Further Those Objectives...eee 9 C. Hoffman’s Reasoning Does Not Bear Upon the Issues in This Case ............cceeceeeecsecessneceseeesereeeereesnneeeserenes 15 1. The Hoffinan Opinion 00...eeeeeeeeneeeeeeeees 16 2. Hoffman’s Backpay Holding Was Narrow................. 18 3. Even Assuming Arguendo That SB 1818’s Affirmation of Remedies Under the FEHA Was Somehow “Counter To” IRCA, Preemption Does Not Thereby Follow.........0...0.0eeeeeeeeeeee eee 21 D. None of the Other Remedies Sought in this Action are Preempted by Federal Immigration Law................. 23 CONCLUSION oiecieceecescesseesseesecesaceereseeseseseesaaeeesatseseesecssasensesesasnntes 26 CERTIFICATE OF WORD COUNToooeectreteeeereneeeeneeeee 28 CERTIFICATE OF SERVICE...cceeeneeeeaseeeneecensessneeeseeseanees 29 TABLE OF AUTHORITIES CALIFORNIA STATE CASES Farmer Brothers Coffee v. WCAB (2005) 133 CalApp.4th 533.00... eeeeeceesceesesseeeeseessreesessetesseeenees 13 Harris v. City ofSanta Monica (2013) 56 Cal.4th 203.......ccccccceeee 24 Richards v. CH2MHill (2001) 26 Cal.4th 798... cccccccccssesseeeeeeees 20 CALIFORNIA STATUTES California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900 ef seq. ......cceeccstseeepassim SB 1818 (codified inter alia at Cal. Lab. Code § 1171.5) wo.passim OTHER STATE CASES Abel Verdon Construction v. Rivera (2011) 348 S.W.3d 749 ow. 15 Asylum Co. v. D.C. Dept. ofEmployment Svcs. (2010) 10 A.3d 619 ooo ccccceseeseeseeseeseeceseseesseesseeseeceessseesenees 12 Balbuena vy. IDR Realty LLC (2006) 845 N.E.2d 1246 wo... 12 Design Kitchen and Baths v. Lagos (2005) 882 A.2d 817 wee 12 Coma Corp. v. Kansas Dept. ofLabor (2007) 154 P.3d 1080.00.00... 15 Continental PET Technologies, Inc. v. Palacias (2004) 604 S.E.2d 627... icccccsccesesseeseesecssseseeseecssssssessesersessesesates 15 Correa v. Waymouth Farms, Inc. (2003) 664 N.W.2d 324 wo. 13 iil Crespo v. Evergo Corp. (2004) 841 A.2d 471 oo... cccceccceesseeeeseees 15 Dowling v. Slotnik (1998) 712 A.2d 396 ....cccccccccscccccsesesessceesees 13, 23 Economy Packing Co. v. Illinois Workers' Comp. Comm'n (2008) 901 N.E.2d 915 oo ccccceseeseesseseeeseessseseeesssessccseessessesseaees 15 Gonzalez v. Performance Painting, Inc. (2011) 258 P.3d 1098......... 15 Grocers Supply, Inc. v. Cabello (2012) 309 S.W.3d 707 wo... eeeeeeeee 12 Reinforced Earth Co. v. Workers' Comp. Appeal Bd. (2000) 749 A.2d 1036 woo eeeeccesecessetsessestssseeeceseecstessssscsessseeevas 13 Rosa v. Partners in Progress, Inc. (2005) 868 A.2d 994 ww... 15, 25 Ruiz v. Belk Masonry Co., Inc. (2002) 559 S.E.2d 249 wou ceeceeeeee 15 Safeharbor Employer Services I, Inc. v. Cinto Velazquez (2003) 860 S0.2d 984 oo. eeesessssessesessesseseeseseessecsesscsnssesseeaevaeees 7 Tarango v. State Indus. Ins. System (2001) 25 P.3d 175 woo. ceeeeeeseees 15 FEDERAL CASES Albemarle Paper Co. v. Moody (1975) 422 U.S. 405.00...eee 20, 21 Arizona v. United States (2012) 567 U.S. gg 132 S.Ct. 2492cccccsscesessessecsecssecseeeseessesssenaeses 1,5, 14 Chamber ofCommerce v. Whiting (2011) 563 U.S. UBT S.Ct. 1968icececsecsseseesscsseesseeeeeesseseesasenes 5, 7, 14 Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504 voecececesseecsees 4 City ofLos Angeles Dep't of Water & Power v. Manhart (1978) 435 U.S. 702 woeeeecescesesscscessssessesesscsessessesescsesevesesenseeaeasens 20 iv De Canas v. Bicad (1976) 424 US. 35 1 eeceeeeeeeceeeeneetseeneeeeneeeaees 3,5 Florida Lime & Avocado Growers, Inc. v. Paul (1963) 373 U.S. 132 icececcseesecsceeseeeseceecesneeseaeeeseeeeeeseneeeees 1, 22 Gade v. Natl. Solid Wastes Mgmt. Assn. (1992) 505 U.S. 88...7 Hines v. Davidowitz (1941) 312 U.S. 52 vooceccccccccessseceeesesseeeenseeens 2,22 Hoffman Plastic Compounds, Inc. v. NLRB (2002) S35 U.S. 37 ceeeeeesecccccsssccceeeeessececeeneeessneesseeeseseeaeeessesssssseaanespassim INS y. National Centerfor Immigrants' Rights, Inc. (1991) 502 U.S. 183 oeeecseeeeeeseeeseeeseeneeeeeeeeseeessesesseesssesteesas 9 Jones vy. Rath Packing Co. (1977) 430 U.S. S19... cceecesseeeseees 2,7 Lamonicav. Safe Hurricane Shutters, Inc. (11th Cir. 2013) 711 F.3d 1299 oiecceeceesseeteeesecseeesseeeessesseesseeeeseeneess 11 Madeira v. Affordable Housing Fadn., Inc. (2d Cir. 2006) 469 F.3d 219 oocecesseeeeseeseessenseeseeeeeteeenseeeses 4,5, 12, 25 Medtronic, Inc. v. Lohr (1996) 518 U.S. 470 w.ccccecseseeeseeeeeteneeeee 2 New York State Conference ofBlue Cross & Blue Shield Plansv. Travelers Ins. Co. (1995) 514 US.645 w.ccccccccesccesseesesseseessteseees 2 Patel v. Quality Inn South (11th Cir. 1988) 846 F.2d 700......11, 17, 23 Rice v. Norman Williams Co. (1982) 458 U.S. 654.......cceceseeeeeeees 2,7 Rivera vy. Nibco, Inc. (9th Cir. 2004) 364 F.3d 1057ow19, 21 Silkwood v. Kerr-McGee Corp. (1984) 464 U.S. 238......cccccccsseeeee 22 Sure-Tan v. NERB (1984) 467 U.S. 883 ..ccccccececcssseeeseesereees 11,17, 18 FEDERAL STATUTES Immigration and Nationality Act (“INA”), 8 U.S.C. S$ L1O] CL SCG. cececccceccccsssessssceceessessceesscesensessseueesssserseseatespeereenees 3 Immigration Reform and Control Act (“IRCA”), Pub.L. 99-603, 100 Stat. 3359 oo.ccceeesesseessetteeereeenspassim Title VI of the Civil Rights Act of 1964, A2 US.C. §§ 2000ef SO. ..eeeececccccccssssccessceseeceesessesscsessessessesssens 20 T ULS.C. § 205 1eee cececeseesceneesscessecsecseeseessessesesseecesessessessesesessesanens 3 8 US.C. § 13248ecescsecseesecseeeseceeseeeeeseesecsscaesessesessessessseseassevares 3 8 ULS.C. § 1324a(a)(1)-(2) .eeecccccsecssescseeseesssesesseesaeecseescssssscsessecesseens 3 8 US.C. § 1324a(D)(2)eee ccccccesccssceseeseseesecsseseeseeseesecssesssssscsssesstarseeas 4 8 US.C. § 1324Deeeceecesseseeecnsessesscsssseessesseseecsaecsscssesssscsavsevaeseees 3 8 US.C. § 13246ce ceeecsceseesecseeseesseessescsesaeessessessecusccssascessssesseaseassaees 3 29 US.C. § 1871ececeeeeessesseseceseesecseeecssecsecseeseseesesssssusscsscaesarsnsenens 3 National Labor Relations Act ("NLRA"), 29 U.S.C. $$ 1S Let SCG. ...eeccccscsssesssecessessecssseessessecsecscssssseseesansseeesscaeeesspassim OTHER FEDERAL AUTHORITIES H.R. Rep. No. 99-682(1), reprinted in U.S. Code Cong. &. Admin. NOWS 5662......:..cccccccsesecccscsceesececsssscecsccesssscessscesseesesees 6,9 H.R. Rep. No. 99-682(II), reprinted in U.S. Code Cong. & Admin. NewS 5649 .0.....cccceccccssssccssssesceseseeesseceesstsasessecsuesscevenss 6,17 H.R. Rep. No. 99-1000, reprinted in U.S. Code Cong. & Admin. NewS 5840 ........ccccccsscssscsesssscsscsesscssssscssevsceevscessacsesaucataseas 9 V1 SECONDARY AUTHORITIES Blasi and Doherty, "California Employment Discrimination Law and its Enforcement: The Fair Employment and Housing Act at 50", available at http://www.dfeh.ca.gov/res/docs/Renaissance/FEHA%20a t%2050%20-%20UCLA%20-%20RAND%20Report_FIN AL.Pdf oo ecccsccccscccssecssnseesneeesseeceneeeseaeeceeeessaeeeeeesseeesaneeeeneeeentees 20 Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails (2007) U. Chi. Legal F. 193 Loceccecsccsscssecsseeessssseseeesseeceeaeececeecsaeesenesecsueeeseeseseersaeeseeteseatesees 17 Vil INTRODUCTION Pursuant to the Court’s Order of February 27, 2013, Plaintiff and Appellant Vicente Salas submits this supplemental brief on the question of whether the remedies available to undocumented workers for violations of California’s labor and employmentlawsare preempted by federal immigration law. ARGUMENT For the reasons set forth below, federal immigration law does not prevent undocumented workers from availing themselves of any compensatory remedies afforded by this state’s workplace laws, including without limitation awards of backpay, compensatory damages, and punitive damages. I. The Applicable Law Under the Supremacy Clause, state law mustyield to federal law in three situations. First, state law is preempted where Congress has “enact[ed] a statute containing an express preemption provision.” Arizona v. United States (2012) 567 U.S.__, 132. S.Ct. 2492, 2500- 01. Second, federal law ousts state law that seeks to regulate conduct “in a field that Congress .. . has determined must be regulated byits exclusive governance.” Jd. at 2501. Finally, state law must give way whereit conflicts with federal law, either because “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul (1963) 373 U.S. 132, 142-43, or because the state law “stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress,” Hines v. Davidowitz (1941) 312 U.S. 52, 67. As a threshold matter, the U.S. Supreme Court hasstated that “Twle have never assumedlightly that Congress has derogatedstate regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplantstate law.” New York State Conference ofBlue Cross & Blue Shield Plans v. Travelers Ins. Co. (1995) 514 U.S. 645, 655. “Becausethe States are independentsovereigns in our federal system, courts have long presumed that Congress does not cavalierly preempt state causes of action.” Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485. “In preemption analysis, courts should assumethat ‘the historic police powersof the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.’” Jones v. Rath Packing Co (1977) 430 U.S. 519, 525 quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230 (emphasis added). II. SB1818 Is Not Preempted By Federal Immigration Law Noneof the conditions required for a finding of federal preemption is present with respect to SB 1818. A. Federal Immigration Law Contains No Express Preemption Language Applicable to SB 1818 There is nothing in the federal immigration statutes that expressly preempts state worker protection statutes such as SB 1818. Prior to 1986, the Immigration and Nationality Act (“INA”) had at most “a peripheral concern with employmentofillegal entrants” to the United States. De Canas v. Bica (1976) 424 U.S. 351, 360. Accordingly, De Canas found noreason to believe that the INA preempted a California statute that prohibited the knowing employment of undocumented workers. /d. at 358.' And the Immigration Reform and Control Act (“IRCA”), enacted by Congress in 1986 to make unlawful the knowing employment ofundocumented workers,” contained only one express preemption provision. That subsection provides: (2) Preemption The provisions ofthis section [8 U.S.C. § 1324a] preemptany State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ,or recruit or refer for a fee for employment, unauthorizedaliens, ' In reasoning that Congressdid not intend to occupythe field of law concerning the employment ofundocumented workers, De Canas pointed to the 1974 amendmentsto the Farm Labor Contractor Registration Act, which provided (at 7 U.S.C. § 2051) that compliance with that Act “shall not excuse anyone from appropriate State law and regulation.” 424 U.S. at 362. The cited language, since recodified in materially identical form at 29 U.S.C. § 1871, remainsin effect today. * 8U.S.C. § 1324a(a)(1)-(2). IRCA also enactedprovisionsto protect immigrant workers from “document abuse”and discrimination because oftheir national origin or citizenship status (8 U.S.C. § 1324b). In 1990, Congress amended IRCAto create penalties applicable to any person involved in creating or using fraudulent work authorization documents (8 U.S.C. § 1324c). 8 U.S.C. § 1324a(h)(2). This subsection applies solely to state or local laws purporting to sanction personsorentities that knowingly hire, recruit, or refer undocumented workers for employment. It does not address and has no bearing upon state employment and labor laws that permit workers to seek remedies for violations of their separate and distinct workplace rights.’ Accordingly, SB 1818 is clearly not expressly preempted. See also Cipollonev. Liggett Group, Inc. (1992) 505 U.S. 504, 517 (noting that “Congress’ enactmentof a provision defining the pre- emptive reach of a statute implies that matters beyond that reach are not pre-empted.”). B. Nothing in IRCA Supports a Finding of Either “Field Preemption”or “Conflict Preemption” Thereis no reason to believe that by enacting IRCA, Congress somehow intended to occupy the field of employment and labor law with respect to immigrant workers to the exclusion ofall state regulation. Likewise, there is no basis for any view that SB 1818 is an “obstacle” to IRCA’s goals, or that compliance with both IRCA and SB 1818 is “an impossibility.” 1. Congress Did Not Intend, Through IRCA,to Supplant the Historic Police Powers of the States to Protect Workers See also Madeira v. Affordable Housing Fdn., Inc. (2d Cir. 2006) 469 F.3d 219, 239-40 (noting that “[c]ompensatory damagesfor personal injury do not reasonably equate to sanctions.’”’). Field preemption is found when federal law establishes a “framework of regulation so pervasive that Congressleft no room for the States to supplementit or where there is a federal interest so dominantthat the federal system will be assumed to preclude enforcementof state laws on the same subject.” Arizona, 132 S.Ct.at 2501 (quotation and alteration marks omitted). Neither is the case here. California possesses broad authority to regulate the employmentrelationship to protect workers within the State. See De Canas, 424 U.S. at 356. This historic police powerto enact worker protections remains firmly in the hands of the States, even as narrowly modified by IRCA to make employer sanctions for knowingly hiring undocumented workers (except through licensing laws) an exclusively federal matter. See, e.g., Chamber ofCommerce v. Whiting (2011) 563 U.S. _, 131 S.Ct. 1968, 1974 (quoting De Canas); Madeira v. Affordable Housing Fdn., Inc. (2d Cir. 2006) 469 F.3d 219, 228, 240 (observing that although “immigrationis plainly a field in which the federal interest is dominant... . State tort and labor laws, however, occupy an entirely different field”, and that the States enjoy “‘broad authority undertheir police powers to regulate... employment 939relationship[s] to protect workers within the State.””) (quoting De Canas). And, of course, “the mere fact that ‘aliens are a subject of a state statute does not renderit a regulation of immigration.’” Arizona, 132 S.Ct. at 2530 (Alito, J., concurring and dissenting) (quoting De Canas). Indeed, any doubts that Congress intended to leave untouched the States’ ability to create mghts and remediesfor all persons who have been subjected to injustices in the workplace are dispelled by IRCA’s legislative history. As noted previously,’ the House Judiciary Committee made explicit that nothing in IRCA’s employer sanctions wasto “be used to undermine or diminish in any way labor protections in existing law,or to limit the powers offederal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in practices protected by existing law.”” (emphasis added) Likewise, the House Labor and Education Committee emphasizedthatit “does not intend that any provision of this Act would limit the powers of State or Federal\abor standards agencies . . . in conformity with existing law, to remedy unfair practices committed against undocumented employees... . To do otherwise would be counter- productive of our intent to limit the hiring of undocumented employees and the depressing effect on working conditions caused by their employment.’® (emphasis added) * Appellant’s Opening Brief at 9 n.9. > -HLR. Rep. No. 99-682(1), at 58, reprinted in U.S. Code Cong. & Admin. News 5662. ° H.R. Rep. No. 99-682(II), at 8-9, reprinted in U.S. Code Cong. & Admin. News 5649, 5758. Clearly, “IRCA does not... so thoroughly occupythe field as to require a reasonable inference that Congress left no room forstates to act.” Safeharbor Employer Services I, Inc. v. Cinto Velazquez (2003) 860 So.2d 984, 986 (Fla. App.) (rejecting argument that IRCA preempted Florida workers’ compensation law). Indeed, far from any desire to occupythe field with respect to the employment and labor rights of undocumented workers, Congress in enacting IRCA expressly declared that the rights and remedies provided by the States were to continue unabated, in tandem with and,in fact, were a critical part of the effort to achieve IRCA’s goals. 2. SB 1818 Does Not Conflict With Federal Immigration Law Showingsof conflict preemption are not easily made. “The existence of a hypothetical or potential conflict is insufficient to watrant the pre-emption ofthe state statute.” Rice v. Norman Williams Co. (1982) 458 U.S. 654, 659. Moreover, “preemption analysis does notjustify a ‘freewheeling judicial inquiry into whether a State statute is in tension with federal objectives’; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that preemptsstate law.’” Whiting, 131 S.Ct. at 1985 (quoting Gade v. Natl. Solid Wastes Mgmt. Assn. (1992) 505 U.S. 88, 111. A “clear demonstration of conflict . . . must exist before the mere existence of a federal lawmaybesaid to pre-emptstate law”. Jones, 430 U.S.at 544 (Rehnquist, J., concurring in part and dissenting in part). Such a showingis not presenthere. a. Compliance With Both SB 1818 and IRCAis Not a “Physical Impossibility” There is no basis whatsoever for a claim that complying with the dictates of both SB1818 and IRCAis impossible. IRCA, as has been explained, created sanctions against employers and others who knowingly hire, recruit, or refer undocumented workers for employment. SB 1818, on the other hand, simply reaffirms the continuingvitality of the substantive rights and remediesthat are available to all workers in California irrespective of their immigration status. Thus, as an example,it is entirely possible that an employer can be sanctioned by the Department of Homeland Security for having knowingly hired an undocumented worker while — at the very same time — that worker can file a charge of discrimination against the same employer with the California Department of Fair Employment and Housing. (This very scenario has doubtless occurred with frequency.) There is absolutely no conflict present here, either between these actions or the legal processes they set in motion. See also Madeira, 469 F.3d at 242 (rejecting “impossibility” argument and observing that employers’ duties to employees under workplace safety laws “are unrelated to, and do not depend on, the worker’s compliance with federal immigration laws.”) (citations omitted). Both SB 1818 and IRCA can be fully enforced and complied with at the same time. Their subject matters are different, and neither statute precludes the operation of the other. Indeed, SB 1818 takes pains expressly to exclude from its application the only area of 8 conceivable tension with the policies motivating IRCA — i.e., “any reinstatement remedy prohibited by federal law”. Thereis no basis for discerning any conflict between the twostatutes. b. SB 1818 Is Not An “Obstacle” to Achieving IRCA’s Objectives; Instead, It Helps to Further Those Objectives IRCA’s central purpose, of course,is that of controlling unauthorized immigration to the United States’ and discouraging the employment ofundocumented workers.® This purpose is hardly frustrated by providing state law rights and remediesfor undocumented employees. Quite the contrary: ensuring — as SB 1818 does — that employers have no financial or legal incentivesto prefer and seek out undocumented workersis fully in keeping with and advances IRCA’s goals. As noted previously, the Legislature’s purpose in enacting SB 1818 was to reaffirm that all workers in this state were equally ’ See, e.g., H.R. Rep. No. 99-682(I), at 46-49 (stating the purpose of IRCAis that of controlling immigration to the United States, mainly through enactment of employer sanctions), reprinted in U.S. Code Cong. & Admin. News 5662; H.R. Rep. No. 99-1000, at 85 (conference report on IRCA)(stating IRCA’s purposeis to effectively control unauthorized immigration to the United States), reprinted in U.S. Code Cong. & Admin. News 5840, 5840. * “IRCA ‘forcefully’ made combating the employment of illegal aliens central to ‘[t]he policy of immigration law.’” Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 147, quoting INSv. National Centerfor Immigrants’ Rights, Inc. (1991) 502 U.S. 183, 194 and n.8. protected by California’s employmentand labor lawsregardless of immigration status, so as to ensure that unprincipled employers would have no reason to prefer undocumented persons over those who were work-authorized.”? Were undocumented workersto be left unprotected, or simply less protected, by the same lawsthat authorized workers enjoy, unethical employers would have every incentive to employ them knowingthat they could be underpaid, subjected to unlawful working conditions, discriminated against, and then fired — all with absolute impunity as far as state law was concerned.’ Such structure of unequalrights and remedies would, if anything, encourage employers to seek out unauthorized workers and thereby provide an economic inducementfor the behaviorthat Justice Breyer, in the context of the National Labor Relations Act, pointed to in his dissenting opinion in Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137": To deny the Board the power to award backpay ... lowers the cost to the employerofan initial labor law violation . . . [I]t thereby increases the employer’s incentive to find andto hire illegal-alien employees. . . . The Court has recognized these considerations in stating that the labor laws ° Appellant’s Opening Brief at 13-14. '° Even the Hoffman majority took painsto assert that its denial of backpay to undocumented workers “does not mean that the employer gets off scot-free.” /d. at 152 (referencing survival of posting and cease and desist orders as remedies available to undocumented workers). '' The majority opinion in Hoffmanis discussedat length infra. 10 must apply to illegal aliens in order to ensure that “there will be no advantage under the NLRA in preferring illegal aliens” and therefore there will be “fewer incentives for aliens themselvesto enter.” [citation] The Court today accomplishesthe precise opposite. Id. at 155-56 (Breyer,J., dissenting) (citing Sure-Tan v. NLRB (1984) 467 U.S. 883)” The Hoffman majority, however,left this observation unaddressed, andthus left unexplained its implicit repudiation of its . . . 13 own opposite reasoning in Sure-Tan. "2 Sure-Tan, 467 U.S. at 893-94 (observingthat “[a]pplication of the NLRA helpsto assure that the wages and employmentconditions of lawful residents are not adversely affected by the competition of illegal alien employees whoare not subject to the standard terms of employment. If an employerrealizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire suchillegal aliens is correspondingly lessened. In turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselvesto enter in violation of the federal immigration laws.”). "> Federal courts of appeals have similarly observed that providing equal remedies to unauthorized employeesis necessary to avoid creating economic incentives for employers to hire them. See, e.g., Patel v. Quality Inn South (11th Cir. 1988) 846 F.2d 700, 704-05 (“w]e recognize the seeming anomaly of discouraging illegal immigration by allowing undocumented aliens to recover in an action under the FLSA. By reducing the incentive to hire such workers the FLSA’s coverage ofundocumented aliens helps discourage illegal immigration andis thus fully consistent with the objectives of the IRCA.”); Lamonica v. Safe Hurricane Shutters, Inc. (1\th Cir. 2013) 711 F.3d 1299, 1308-09 (following Patel in reaffirming FLSA coverage for unauthorized employees, holding that “even after Hoffman, we maintain that “[b]y reducing the incentive to hire such workers the FLSA's coverage of undocumentedaliens helps 11 For these and other reasons, including the clear indications of contrary intent in IRCA’s legislative history, Justice Breyer and three other Justices concluded that Congress could not have intendedthat IRCA would deprive undocumented workers of remedies undereither federal or state labor laws. 535 U.S. at 156-57 (Breyer,J., dissenting). See also Madeira, 469 F.3d at 246 (observing that the Hoffman majority did not explicitly dispute that denying equal benefits would encourage hiring of unauthorized workers). Numerous courts of other States, in rejecting Hoffman-based preemption challenges, have likewise determined that the denial of equalstate law rights and remedies to unauthorized workers would frustrate IRCA’s purposes becauseofthe perverseincentives that wouldbecreatedasa result.'* discourageillegal immigration andis thus fully consistent with the objectives of the IRCA.”(citation omitted), and rejecting in pari delicto defense based on plaintiff’s use of a false Social Security number); Madeira, 469 F.3d at 245 (discerning “a financial incentive for unscrupulous employers to hire undocumented workers”if latter were excluded from workers’ compensation coverage). '* See, e.g., Grocers Supply, Inc. v. Cabello (2012) 309 S.W.3d 707, 718-19 (Tex. App.) (“it could be argued that employers might have a higher incentive for hiring illegal aliens if Congress superseded liability for those individuals’ injuries.”); Asylum Co. v. D.C. Dept. of Employment Svcs. (2010) 10 A.3d 619, 633 (D.C.) ( “denying compensation to undocumented aliens ‘creates powerful incentives for employers to hire such individuals.’”) (citation omitted); Balbuena v. IDR Realty LLC (2006) 845 N.E.2d 1246, 1257 (N.Y.) (“limiting a lost wages claim by an injured undocumented alien would lessen an employer’s incentive to comply with the Labor Law and supplyall of its workers the safe workplace that the Legislature demands.”) (citations omitted); Design Kitchen and Baths v. Lagos (2005) 882 12 It is thus difficult to discern any conflict between IRCA,on the one hand, and the rights and remedies reaffirmed by SB 1818. To the contrary, the maintenance of equal protections for undocumented workers — andthe resulting avoidance of incentives for employers to prefer such workers — is essential to achieving IRCA’s purposes. For these reasons, SB 1818 is not “conflict preempted” by IRCA. Accordingly, there are no groundsfor any claim that SB 1818 A.2d 817, 826 (Md.) (noting that without workers’ compensation protections, “unscrupulous employers could, and perhaps would, take advantage of [undocumented workers] and engage in unsafe practices with no fear of retribution”); Correa v. Waymouth Farms, Inc. (2003) 664 N.W.2d 324, 331 n.4 (Minn.) (“to the extent that denying unauthorized aliens benefits predicated on a diligent job search gives employers incentive to hire unauthorized aliens in expectation of lowering their workers’ compensation costs, the purposes underlying the IRCA are not served.”). The California Court of Appeal has likewise rejected a Hoffman-based preemption challenge to California’s Workers’ Compensation Act. Farmer Brothers Coffee v. WCAB (2005) 133 Cal.App.4th 533. Other State courts had reached the same conclusionprior to Hoffman. See, e.g., Reinforced Earth Co. v. Workers’ Comp. Appeal Bd. (2000) 749 A.2d 1036, 1039 (Pa. Commw.Ct.) (stating that denial of workers’ compensation benefits would encourage employers by “actively seek{ing] out illegal aliens rather than citizens or legal residents because they will not be forced to insure against or absorb the costs of work-related injuries”); Dowling v. Slotnik (1998) 712 A.2d 396, 404 (Conn.) (“denying undocumented workers equal coverage under employment and labor laws would “contravene the purpose of the Immigration Reform Act by creating a financial incentive for unscrupulous employers to hire undocumented workers.”’). 13 is preempted by IRCA on anybasis.'” This Court should join the overwhelming majority of sister State courts that have likewise found '° This conclusionis fully consistent with the two recent decisions of the U.S. Supreme Court that have discussed the asserted preemptive effect of IRCA uponstate enactments concerning undocumented immigrants. In Chamber ofCommerce v. Whiting (2011) 563 U.S. ___, 131 S.Ct. 1968, the Court found that IRCA did not preempt an Arizona law that provided for the suspension of the licenses of businessesthat knowingly employed unauthorized persons, because that law fell squarely within the exception for licensing-based requirements contained in IRCA’s express preemption language. /d. at 1980. Whiting also found not preempted the law’s requirementthat employersuse the federal “E-Verify” online employment authorization verification system, in that such laws were not expressly preempted, and also because the federal government (1) had in fact encouragedthe States to use E-Verify, and (2) disclaimed that the Arizona law would obstruct the operation of E-Verify. Jd. at 1985-86. In Arizona v. United States (2012) 567 U.S. __, 132 S.Ct. 2492, the Court upheld a preemption challenge to another Arizona law concerning undocumented immigrants insofar as (1) its penalties for non-compliance with alien registration requirements were preempted because Congress had occupiedthefield of alien registration; (2) it criminalized actions that IRCA purposely refrained from penalizing as inconsistent with federal policy; and (3) its authorization for state and local officers to make warrantless stops of persons suspected of being deportable encroached on the exclusive authority of federal authorities to make determinations as to removability. In each of these areas, the Arizona law purportedto legislate in areas where “the federal power to determine immigration policy is well settled.” Jd. at 2498. In the present case, by comparison, SB 1818 hardly purports to legislate as to “which aliens may be removed from the United States and the procedures for doing so.” Jd. at 2499. The Court held a fourth section of the law wasnot preempted becauseit was consistent with federal 14 no reason to believe that IRCA displaces their longstanding protections against discrimination and other abusesin the workplace.'° C. Hoffman’s Reasoning Does Not Bear Uponthe Issues in This Case The U.S. Supreme Court’s opinion in Hoffman, which held that the National Labor Relations Board improperly awarded backpay to an undocumented worker as a remedy for unlawful labor practices, statutes envisioning state cooperation with immigration authorities, and because it was premature to determine whetherits implementation would conflict with federal immigration enforcement. /d. at 2507-10. 16 os . See decisions cited at n.14, supra; see also, e.g., Gonzalez v. PerformancePainting, Inc. (2011) 258 P.3d 1098 (holding New Mexico workers’ compensation benefits not preempted); Abel Verdon Construction v. Rivera (2011) 348 S.W.3d 749 (holding Kentucky workers’ compensation benefits not preempted); Economy Packing Co. v. Illinois Workers’ Comp. Comm’n (2008) 901 N.E.2d 915 (holding Illinois workers’ compensation benefits not preempted); Coma Corp. v. Kansas Dept. ofLabor (2007) 154 P.3d 1080 (holding Kansas Wage Payment Act not preempted); Rosa v. Partners in Progress, Inc. (2005) 868 A.2d 994 (holding New Hampshire commonlaw negligence claim not preempted); Continental PET Technologies, Inc. v. Palacias (2004) 604 S.E.2d 627 (holding Georgia workers’ compensation benefits not preempted); Ruiz v. Belk Masonry Co., Inc. (2002) 559 S.E.2d 249 (holding, prior to Hoffman, North Carolina workers’ compensation benefits not preempted). But cf. Tarango v. State Indus. Ins. System (2001) 25 P.3d 175 (Nev.) (holding Nevada workers’ compensation benefits preempted by IRCA); Crespo v. Evergo Corp. (2004) (N.J. Super. A.D.) 841 A.2d 471 (holding undocumented employee’s damages for discriminatory termination under New Jersey law precluded by Hoffman,although not on preemption grounds,but reaffirming coverage for undocumented workers by state workers’ compensation laws). 15 does not usefully inform the question of what state law rights and remedies are available to undocumented workersin light of IRCA. Indeed, Hoffman wasnot even a preemption case. Nor does anything in that decision lend support to finding that SB 1818 is preempted by IRCA. 1. The Hoffman Opinion At issue in Hoffman was a remedial order issued by the National Labor Relations Board in a case where the employer had unlawfully laid off four employees because oftheir participation in union organizing. That order required the employer to cease and desist from further NLRA violations, to post a notice concerning the remedial order, and awarded the employees backpay and reinstatement. At a subsequent hearing held to determine the amount of backpay to be awarded, one of the employees, José Castro,testified that he had obtained his employmentbyusinga birth certificate that did not belong to him. On appeal from the Board’s decision that Castro was nonetheless entitled to backpay, Hoffman held that the Board had exceededits discretion inasmuch as awarding backpayconflicted with what the Court perceived to be Congress’ intent in enacting IRCA. The Court analyzed IRCA as follows: Under the IRCA regime,it is impossible for an undocumented alien to obtain employmentin the United States without someparty directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the comerstone of IRCA’s enforcement mechanism,or the 16 employer knowingly hires the undocumentedalien in direct contradiction of its IRCA obligations. The Board asksthat we overlook this fact and allow it to award backpay to an illegal alien for years of work not performed, for wagesthat could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud. Wefind, however, that awarding backpayto illegal aliens runs counterto policies underlying IRCA,policies the Board has no authority to enforce or administer. Therefore, as we have consistently held in like circumstances, the awardlies beyond the boundsof the Board's remedial discretion. 535 U.S. at 148-49. The Hoffman majority dismissed the plain evidence of contrary Congressional intent contained in IRCA’s legislative history as “a rather slender reed”’’ and notedthat, in any case, IRCA did not overrule Sure-Tan v. NLRB (1984) 467 U.S. 883, '’ The majority took Justice Breyer to task for “pointing to a single Committee Report” (that of the House Judiciary Committee). Id. at 149 n.4. But this understates the significantly greater extent to which Congress’s intent to maintain nights and remediesfor unauthorized workers was reflected elsewhere throughout IRCA’s legislative history. See, e.g., H.R. Rep. No. 99-682(IT) (House Labor and Education Committee), at 8-9, reprinted in U.S. Code Cong. & Admin. News 5649, 5758 (emphasizing need to maintain existing powersof federal and state labor standards agenciesto protect legal rights of unauthorized employees), Patel v. Quality Inn South (11th Cir. 1988) 846 F.2d 700, 704 (noting that in IRCA, “Congress. specifically authorized the appropriation of additional funds for increased FLSA enforcement on behalf of undocumentedaliens.”); Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails (2007) U. Chi. Legal F. 193, 203-04 (examining IRCA’slegislative history and concluding that IRCA’s “{mJaintenanceofall existing labor protections for undocumented immigrants furthered the goal of discouraging their employment.”). 17 which“limited the remedial powers of the NLRB.”'"® 535 U.S.at 149 n.4. 2. Hoffman’s Backpay Holding Was Narrow In discussing the extent to which Hoffman mightprovide any guidancein the caseat bar, it is important to understand whatthat decision held and whatit did not hold. First, Hoffman expressly reaffirmed that undocumented workers, even those who used false documentation to obtain employment, were covered by the NLRA."” Accordingly, any argumentthat Mr. Salas’s alleged and unproven proffer to Sierra of an invalid Social Security number deprives him of his ability to maintain his suit under the Fair Employment and Housing Act thusfindsutterly no support in Hoffman. If anything, Hoffman counsels a contrary conclusion — that even though Castro had tendered false documentation to obtain employment, hestill had rights under the NLRA and remediesfor their violation. Second, Hoffmanis properly limited to the legal framework from whichit arose. Importantly, Hoffman’s outcome turned uponits '8 Sure-Tan “limited the remedial powers of the NLRB”in the sense that it overturned a Seventh Circuit order directing the Board to impose a minimum backpay award without regard to the employees' actual economiclossesor legal availability for work. Sure-Tan, however, cast no doubt on the general availability of backpay to undocumented workers. /d., 467 U.S. at 902. "9 Td. at 149 n.4 (“Ourfirst holding in Sure-Tan [‘that undocumentedaliens are employees within the meaningofthe NLRA’| is not at issue here’’). 18 disapproval of whatit characterized as the Board’s attemptto provide remedies it believed were consistent with IRCA — an action, the Court held, the Board could not take inasmuchasits authority waslimited to the interpretation of its own statute, the NLURA. More than anything else, it was the Court’s conclusion that the Board had exceededthe boundsofits administrative discretion in attempting to interpret IRCA that underlay its reversal of the Board’s backpay award.” Hoffman therefore did not reach the question whether the courts — whoserole certainly encompasses weighing and resolving conflicts between arguably competing statutes — would have had the authority to make a backpay award. This distinguishing factor plainly diminishes Hoffman’ s relevanceto the present case.” Finally, the question of the Board’s limited discretion to interpret other statutes aside, Hoffman’s analysis would necessarily have been different had it been undertaken not in the NLRA context 9 See, e.g., 535 U.S.at 149 (stating that backpay award “runs counter to policies underlying IRCA,policies the Board has no authority to enforce or administer. Therefore, as we have consistently held in like circumstances, the award lies beyond the boundsofthe Board’s remedial discretion.”) (emphasis added), 151-52 (stating that “Thj]owever broad the Board’sdiscretion to fashion remedies with dealing only with the NLRA,it is not so unboundedasto authorize this sort ofan award.”) (emphasis added). 21 See, e.g., Rivera v. Nibco, Inc. (9th Cir. 2004) 364 F.3d 1057, 1068-69 (noting that “to the extent that Hoffman standsfor a limitation on the NLRB’s remedial discretion to interpret statutes other than the NLRA,[Hoffman] appearsnotto be relevantto a Title VII action.”). 19 but, instead, in the context of an employmentdiscriminationstatute. Atleast to the extent that the FEHA is motivated by the same public policies as Title VII of the Civil Rights Act of 1964,”the role of backpayis critical. As Hoffman pointed out, backpay awards under the NLRA are a matter ofdiscretion.”’> By comparison, however, in the employment discrimination context, courts are presumptively required to award backpay whenthe preconditionsfor it are otherwise present.’ This heightened significance of backpayin the civil rights context makes eminent sense in that, unlike under the NLRA,whichis only enforced administratively and providesno private rights of action, statutes such as the FEHA depend importantly on the role of plaintiffs as private attorneys general for their vigorous enforcement.” * See Richards v. CH2MHill (2001) 26 Cal.4th 798,812 (noting similarity between wording and purposes of FEHA andTitle VID). 3 Id., 535 U.S.at 142. See also Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 419-21 (noting discretionary nature ofbackpay under the NLRA and contrasting it with the strong presumption in favor ofbackpay under Title VII). * See City ofLos Angeles Dep’t of Water & Power v. Manhart (1978) 435 U.S. 702, 729 (noting that presumption in favor of backpay awards underTitle VII can “seldom be overcome’); see also Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 417 ¢°[T]he statutory purposes[leave] little room for the exercise of discretion not to order reimbursement.’”’)(citation omitted). > The need for vigorous private enforcement of the FEHAis highlighted by a 2010 assessment of the FEHA’s effectiveness conducted by the Center for Law & Public Policy at the UCLA School of Law. Amongother things, the study found that the FEHA’s enforcement by the Department of Fair Employment and Housing was 20 See, e.g., Rivera v. Nibco, Inc. (9th Cir. 2004) 364 F.3d 1057, 1067 (discussing importanceofprivate actions in the enforcementofTitle VID). The availability of backpay remedies is undoubtedly a decisive factor for many potential plaintiffs in deciding whether to proceed with their legal claims. See also Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 417-18 (noting thatit is “the reasonably certain prospect of a backpay award that provide[s] the spur or catalyst which causes employersand unionsto self-examine andto self-evaluate their employmentpractices”). Hoffman, therefore, can scarcely be used to support the notion that IRCA precludes backpay remediesin the employmentdiscrimination context; the Court simply had no occasion to reach that issue. Indeed, given the greatly differing statutory imperatives involved, there is every reason to believe it would have arrived at a different result. 3. Even Assuming Arguendo That SB 1818’s Affirmation of Remedies Under the FEHA Was Somehow “Counter To” IRCA, Preemption Does Not Thereby Follow - impeded by inadequately trained staff, poor quality assurance, an inefficient caseload system, anda lack of sufficient resources. Blasi and Doherty, “California Employment Discrimination Law andits Enforcement: The Fair Employment and Housing Act at 50”, at 62-63 (available at http://www.dfeh.ca.gov/res/docs/Renaissance/FEHA%20at%2050%2 0-%20UCLA%20-%20RAND%20Report_FINAL.pdf.). 21 Finally, even assuming arguendothat the rights and remedies reaffirmed by SB 1818 might nonethelessstill be “counter to””° the policies underlying IRCA, despite all indications to the contrary, a conclusion that SB 1818 is therefore preempted would be unjustified. Asdiscussed above,for a “conflict” to be sufficiently significant to warrant a drastic finding of preemption, either of two conditions must be present: (1) compliance with both federal and state law must be a “physical impossibility”; or (2) the state law at issue must “stand[] as an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress”. Florida Lime & Avocado Growers, Inc. v. Paul (1963) 373 U.S. 132, 142-43; Hines v. Davidowitz (1941) 312 U.S. 52, 67. Moreover, even the possibility that some “tension” between federal and state law could conceivably exist does not support a finding of conflict preemption. Silkwood v. Kerr-McGee Corp. (1984) 464 U.S. 238, 256. As explained above,there is no conflict between IRCA and SB 1818. H.B.2, supra. And in any event, Hoffman’s conclusion that NLRA backpay awards were “counter to” IRCA’s purposesis open to serious dispute. The Hoffman majority did not addressthe plentiful and unambiguouslegislative history evincing that Congress intended that federal and state workplace protections continue in force, alongside and complementary to IRCA. Nordid the majority respond in any mannerto the dissent’s argumentthat the denial of equal remedies to undocumented workers would havethe effect of °° Hoffman, 535 U.S. at 149. 22 encouraging unlawful immigration. Likewise, the majority did not address Justice Breyer’s concern that it would be purely speculative to posit that foreign workers would be motivated to enter the United States unlawfully in hopesthat they would be subjected to workplace abuses and, as a consequence,be able to receive remedies for those violations.”’ For these reasons, this Court need not adopt Hoffman’s summary conclusion that awarding backpay in the NLRA context would be “counter to” IRCA, let alone extendit to the very different legal context presented here, where the vitality of this State’s sovereign police powersto protect workersis at issue. D. None of the Other Remedies Sought in this Action are Preempted by Federal Immigration Law Asseen, backpay remainsfully available to undocumented workersin this State for violations of the FEHA, notwithstanding IRCA. Similarly, there is even less reason to concludethat any other FEHA remediesare unavailable to undocumented workers by virtue of IRCA, save — as SB 1818 specifies — “any reinstatement remedy prohibited by federal law”. *7 Id. at 155. See also Patel, 846 F.2d at 704 (“We doubt, however, that many illegal aliens come to this country to gain the protection of our labor laws.”); Dowling v. Slotnik (1998) 712 A.2d 396, 404 (Conn.) (“Potential eligibility for workers’ compensation benefits in the event of a work-related injury realistically cannot be described as an incentive for undocumentedaliensto enter this country illegally.”). 23 The FEHAaims“to provide effective remedies that will. . redress the adverse effects of [discriminatory] practices on aggrieved persons”, and “to provide effective remedies that will... prevent and deter unlawful employmentpractices.” Harris v. City ofSanta Monica (2013) 56 Cal.4th 203, 225 (citations omitted). The importance in this State of compensatory and punitive damage awards as meansofredressing workplace wrongs is well established.”® There is no reason whythe availability to undocumented workers of such damages should be cast into doubt by IRCA — even if IRCA were thought, through a Hoffman lens, to somehow conflict with FEHA backpay awards. Such damagesare not expressly preempted by IRCA. Nor — for the reasons discussed with respect to backpay awards — does the availability of those remedies do anything other than advance IRCA’s purposes of discouraging unauthorized immigration, in that they likewise serve to deprive employers of any economic incentives to prefer and seek out persons whoare not work- authorized. Thevitality of FEHA’s compensatory and punitive damage remedies notwithstanding IRCA finds additional supportin that — like backpay — such awards do not presume continuing IRCA violations by 8 See, e.g., cases cited in Amicus Curiae Brief of the American Civil Liberties Union,etal., filed Sept. 25, 2012, at 21-22, and Appellant’s Answer to Brief ofAmicus Curiae Brief Employers Group,filed Dec. 21, 2012, at 6 n.4. 24 either an employer or an employee.”’ As with “make-whole” remedies, such damages simply operate to remedy harmsalready incurred. This aspect of such damages remediesdistinguishes them from prospective, “forward-looking” remedies such as reinstatement, which in the case of an undocumentedplaintiff would require the court to order an action that plainly violated IRCA (unlessthe plaintiff had obtained legal status in the interim). SB 1818, of course, specifically carves out an exception for prohibited reinstatement.*° See Madeira, 469 F.3d at 242-49 (discussing, as factor to be considered in determining which workplace remedies might conflict with IRCA, whether such remedies presume continued IRCA violations). °° Appellant does not seek reinstatementin this matter. The remedyoffront pay, or future lost wages, may present special considerations. Front pay in lieu of reinstatement might be presumed to be unavailable to undocumented workers for the same reason as reinstatement — i.e., that those workers could not properly claim loss of future wages that could not be legally earned, inasmuchas they would not be authorized to continue working in the United States. Somecourts, however, have considered the possibility that a front pay award based not on United States wage levels, but on wagelevels in the employee’s country of origin, might satisfy IRCA-related concerns. See, e.g., Rosa v. Partners in Progress (2005) 868 A.2d 994, 998-1002 (N.H.) (finding unauthorized employees“[g]Jenerally” ineligible to recover future lost United States earnings for workplace injury, but discussing circumstances in which future lost wage awards would not conflict with IRCA) and casescited therein. The Court 25 CONCLUSION For the foregoing reasons, federal immigration law only precludesthe reinstatement of an employee in an FEHAaction whois not work-authorized at the time reinstatement would be ordered. The availability to undocumented workers of the remainder of the FEHA’s remedies in such cases, including and certainly not limited to backpay, is neither preempted nor otherwise precluded by IRCA. Andlastly, for the same reasons, there is no basis for concludingthat like remedies afforded unauthorized workers by any other of this State’s labor and employmentlawsare affected by IRCA,either. As already explained, such remediesare fully consistent with and, indeed, are essential to achieving IRCA’s purposes. need not decide the issue of front pay, however, as that remedy is not requested in this action. 26 Dated: May 28, 2013 Respectfully submitted, David C. Rancafio - RANCANO & RANCANO Christopher Ho Araceli Martinez-Olguin Marsha J. Chien The LEGAL AID SOCIETY — EMPLOYMENT LAW CENTER Norman Pine PINE & PINE By:(2 CHRISTOPHER HO Attorneys for Petitioner and Appellant VICENTE SALAS 27 CERTIFICATE OF WORD COUNT Pursuantto Rule 8.520(c)(1) of the California Rules of Court, I certify that this Appellant’s Supplemental Brief contains 6,624 words, exclusive of the caption page, tables of contents and authorities, signature blocks, and this Certificate and that appearing on the page following. Dated: May 28, 2012 Respectfully submitted, David C. Rancafio RANCANO & RANCANO Christopher Ho Araceli Martinez-Olguin The LEGAL AID SOCIETY — EMPLOYMENT LAW CENTER Norman Pine PINE & PINE By: CHRISTOPHER HO Attorneys for Plaintiff and Appellant VICENTE SALAS 28 CERTIFICATE OF SERVICE I, PAMELA MITCHELL,declare: Iam 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 address 1s 180 MontgomeryStreet, Suite 600, San Francisco, CA 94104. On May 28, 2013, I served the within: APPELLANT’S SUPPLEMENTAL BRIEF X_ by U.S. mail to the personsandat the addressesset forth below: Arnold J. Wolf FREEMANFIRM 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 29 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 Jennifer Chang Newell, Esq. American Civil Liberties Union Foundation Immigrants’ Rights Project 39 DrummStreet San Francisco, CA 94111 Stephen E. Taylor, Esq. Stephen McG.Bundy,Esq. Joshua R. Benson,Esq. Taylor & Company Law Offices OneFerry Building, Suite 355 San Francisco, CA 94111 Julia Harumi Mass,Esq. American Civil Liberties Union Foundation of No. California, Inc. 39 Drumm Street San Francisco, CA 94111 James C. Harrison, Esq. Margaret R. Prinzing, Esq. Remcho, Johansen & Purcell, LLP 201 Dolores Avenue San Leandro, CA 94577 William A. Herreras, Esq. P.O. Box 387 Grover Beach, CA 93483 Cynthia L. Rice, Esq. Kate Hege, Esq. California Rural Legal Assistance 631 HowardStreet, Suite 300 San Francisco, CA 94105 Julia L. Montgomery, Esq. California Rural Legal Assistance Foundation 2210 K Street, Suite 201 Sacramento, CA 95814 I declare under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Executed on May 28, 2013. PAMELA MITCHELL 30