SALAS v. SIERRA CHEMICAL

Respondent’s Reply to Supplemental Brief

Cal.June 11, 2013

Case No. $196568 IN THE SUPREME COURTOF CALIFORNIA VICENTE SALAS, SUPREME COURT Petitioner and Appellant FiE [ “ JUN 11 2013 SIERRA CHEMICAL COMPANY, Defendant and Respondent Frank A. McGuire Cierk Deputy RESPONDENT’S SUPPLEMENTAL REPLY 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 Arnold J. Wolf, Esq., #119135 ThomasJ. Keeling, Esq., #114979 FREEMAN FIRM 1818 Grand Canal Blvd., Suite 4 Stockton CA 95207 Tel 209-474-1818 Fax 209-474-1245 Email: awolf@freemanfirm.com Attorneys for Defendant and Respondent Sierra Chemical Co. Case No. S196568 IN THE SUPREME COURT OF CALIFORNIA VICENTE SALAS, Petitioner and Appellant VS. SIERRA CHEMICAL COMPANY, Defendant and Respondent RESPONDENT’S SUPPLEMENTAL REPLY 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 Arnold J. Wolf, Esq., #119135 Thomas J. Keeling, Esq., #114979 FREEMAN FIRM 1818 Grand Canal Blvd., Suite 4 Stockton CA 95207 Tel 209-474-1818 Fax 209-474-1245 Email: awolf@freemanfirm.com Attorneys for Defendant and Respondent Sierra Chemical Co. TABLE OF CONTENTS I. INTRODUCTION ............. 00000 eee eee 1 Il. ARGUMENT ............... 2.0.2 eee eens 3 A. The Conflict Between An Award of Backpay And Federal Immigration Policy Identified in Hoffman Exists In A Claim For Compensatory Damages By An Undocumented FEHA Plaintiff .............. 3 B. Salas’ Effort To Distinguish And Marginalize Hoffman Should Be Rejected ................-000.. 5 Ill. CONCLUSION .............0 0.0.2.0. ee eee 15 CERTIFICATE OF WORD COUNT ...............-.. 16 TABLE OF AUTHORITIES California Cases Farmer Brothers Coffee v. Workers’ Compensation Appeals Board (2005) 133 Cal. App.4th 533 2... .........0020.0. 9 Other State Cases Abel Verdon Construction v. Rivera (KY 2010) 348 S.W. 3d 749... ee ee ee 10 Asylum Co. v. D.C. Dept. ofEmployment Services (D.C. 2010) 10 A.3d 619 ... 2... ee eee 14 Balbuena v. IDR Realty LLC (N.Y. 2006) 845 N.E.2d 1246 .............0..... 12 Grocers Supply, Inc. v. Cabello (Tex.App. 2012) 390 S.W.3d 707 .........-.204.. 11 Federal Cases Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137... 2.0.0.0... eee eee, passim Rivera v. NIBCO, Inc. (9" Cir. 2004) 364 F.3d 1057) ©... ee ee 8 Statutes Government Code sections 12960 ef seq ..........--.45. 6 Government Code section 12965 ...............-00000- 6 il Government Code section 12973 ........0.........000. Government Code section 12974 .......0.2.........00.0. ill I. INTRODUCTION. Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, held that an award of backpay to an undocumented workerfor violation of the National Labor Relations Act would conflict with “explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA” and “would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.” (dd.at p. 151.) The wide ranging discussion in Salas’ Supplemental Brief artfully dodges what Sierra Chemical suggests is the fundamental question raised by the preemption issue for which the Court requested supplemental briefing: in light of Hoffman’s holding, how could an award of compensatory damages to an undocumented worker not conflict with and be an obstacle to federal immigration policy? The heart of Salas’ argumentis that the Supreme Court wrongly decided Hoffman, that the majority erred in disregarding IRCAlegislative history which showed Congress’ intent to leave 1 state and federal “workplace protections” in place and in ignoring the negative impact of a denial of “equal remedies” to undocumented workers on IRCA’s objective of discouraging illegal immigration. (Salas Supplemental Brief (“SSB”) pp. 22-23.) The argument which Salas presentsis really a call to turn Hoffman upside down by adopting the reasoning of Justice Breyer’s dissent. Salas cites cases which have held that IRCA did not preempt tort remedies and workers’ compensation and Fair Labor Standard Act benefits. (SSB, pp. 12-15, fns. 14, 16.) Nothing in the results or discussion in those cases abrogates Hoffman’s holding that an award of backpay to an undocumented worker for violation of the National Labor Relations Act would conflict with and be an obstacle to IRCA. Absent a meaningful distinction between the award of damages in Hoffman and those available to an FEHAplaintiff, which Salas does not make, Hoffinan’s holding is dispositive of the issue whether an award of compensatory damagesto an undocumented FEHAplaintiff conflicts with and is an obstacle to IRCA. //] II. ARGUMENT. A. The Conflict Between An Award of Backpay And Federal Immigration Policy Identified in Hoffman Exists In A Claim For Compensatory Damages By An Undocumented FEHA Plaintiff. Hoffman’s holding is based on a conflict which the Court found between an award of backpay to an undocumented employee and federal immigration policy, which hasat its core the denial of employmentto illegal aliens. (Hoffman, supra, 535 U.S. at pp. 147- 148.) The Court held that an award conflicted with the policy of denying employment to undocumented workers: Wefind, however, that awarding backpay to 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 award lies beyond the bounds of the Board's remedial discretion. (/d. at pp. 148-149 [Emphasis added].) Hoffman’s analysis is applicable to an award of compensatory damages to an undocumented workerplaintiff in an FEHA action. In addition to damages for backpay, an FEHAplaintiff is potentially entitled to damages for emotional distress and punitive damages. 3 Surely this constellation of awards presents at least as strong a conflict as an NLRB backpay award to IRCA’s “central policy” of “combating the employmentofillegal aliens.” (Hoffman, supra, 535 U.S. at pp. 147-148.) The Supreme Court’s discussionis clear that there is simply no way to reconcile compensatory damage awards to undocumented workers and IRCA: The Board contends that awarding limited backpay to Castro [the undocumented worker] "reasonably accommodates” IRCA,because, in the Board's view, such an award is not "inconsistent" with IRCA. The Board further argues that while IRCA criminalized the misuse of documents, "it did not make violators ineligible for back pay awards or other compensation flowing from employment secured by the misuse of such documents." .. . This latter statement, of course, proves little: The mutiny statute in Southern S. S. Co. [(1942) 316 U.S. 31] and the INA in Sure-Tan [(1984) 467 U.S. 883] were likewise understandably silent with respect to such things as backpay awards under the NLRA. What matters here, and what sinks both of the Board's claims, is that Congress has expressly madeit criminally punishable for an alien to obtain employmentwith false documents. There is no reason to think that Congress nonetheless intended to permit backpay where but for an employer's unfair labor practices, an alien- 4 employee would have remained in the United States illegally, and continued to workillegally, all the while successfully evading apprehension by immigration authorities. Far from "accommodating" IRCA,the Board's position, recognizing employer misconduct but discounting the misconductof illegal alien employees, subvertsit. (id. at pp. 149-150 [Emphasis added.] [Footnote omitted].) Hoffman’s finding that a backpay award would be an obstacle to federal immigration law is equally clear: Indeed, awarding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations... . (Id. at p. 150.) Hoffman’s obstacle analysis is even more compelling when applied to an award of the additional damages available to an undocumented workerplaintiff in an FEHAaction. B. Salas’ Effort To Distinguish And Marginalize Hoffman Should Be Rejected. Salas argues that Hoffman’s holding was “narrow”and,for a variety of reasons, of limited applicability to the issue here. (SSB, pp. 18-20.) First, he argues that Hoffman “affirms”that undocumented workers are covered by the NLRA. This means, the 5 argument continues, that Hoffman “counsels a contrary conclusion” to Sierra Chemical’s contention that Salas’ use of an invalid Social Security number deprives him ofhis ability to maintain an FEHA action: “even though Castro [the undocumented Hoffman employee] had tendered false documentation to obtain employment, hestill had rights under the NLRA and remediesfor their violation.” (SSB, p.18.) Sierra Chemical suggests that a more accurate reading of Hoffman is that the undocumented worker had no remedy for the employer’s NLRA violation. Rather, the remedy existed in the sanctions which the NLRB can impose on the employer. Here the remedy lies in the power of the Fair Employment and Housing Authority to remedy unlawful discrimination. (Government Code sections 12960 et seg., 12965, 12973, and 12974.) Salas’ second argument is that Hoffman should be “properly limited to the legal framework from whichit arose.” (SSB, p. 18.) “More than anything else,” the argument continues, the Court’s decision hinged on a limitation of the NLRB’s “administrative discretion in attempting to interpret IRCA.” (SSB, p. 19.) This means, the argument concludes, that “Hoffman therefore did not 6 reach the question whether the courts - whoserole certainly encompasses weighing and resolving conflicts between arguably competing statutes - would have authority to make a backpay award.” (SSB, p. 19 [Emphasis in original].) But Hoffman not only reached the question, but also proceeded to “weigh and resolve” the conflict between a compensatory damage award and IRCA. Salas’ third argumentis that “Hoffman’s analysis would necessarily have been different had it been undertaken not in the NLRAcontext but, instead, in the context of an employment discrimination statute.” (SSB, pp. 19-20.) This argumentfalls into the category of “wishful thinking.” As discussed above, Hoffman's view of the conflict with and obstacle to IRCA presented by a backpay award is clear. It was also divorced from the decision’s impact on potential NLRA remedies: As we concluded in Sure-7an [(1984) 467 U.S. 833], "in light of the practical workings of the immigration laws," any "perceived deficiency in the NLRA's existing remedial arsenal," must be /// //l "addressed by congressional action," not the courts. Jd. at 904. In light of IRCA, this statement is even truer today. (Hoffman, supra, 535 U.S. at p. 152.) Salas cites Rivera v. NIBCO, Inc. (9" Cir. 2004) 364 F.3d 1057 as supporting the proposition that Hoffman is not applicable to Title VII actions. The Court’s discussion in Rivera arose in the context of its review of a discovery order. Although Judge Reinhardt provided multiple procedural reasons why Hoffman did not compel the conclusion that the prohibition of a backpay award in the context of a NLRB proceeding applied also to title VII action, noticeably absent from the opinion is a substantive analysis why the rationale for Hoffman’s holding that “[c]ongress has expressly made it criminally punishable for an alien to obtain employment with false documents” and “[t]here is no reason to think that Congress nonetheless intended to permit backpay” (535 U.S. at p. 149) would not apply to a Title VII action. Indeed, there is nothing in Hoffman that remotely suggests that Congress intended to permit backpay or other damages to an undocumented Title VII or FEHAplaintiff. Salas cites a numberofcases that have rejected “Hoffman- 8 based preemption challenges” in claims for workers’ compensation and FLSA benefits and for commonlawtorts. (SSB, pp. 11-15, fns. 14,16.) Salas cites these cases for their view that preemption of benefits for undocumented aliens would work against federal immigration policy by reducing potential costs to employers and thereby incentivizing them further to hire undocumented employees. This view of preemption’s impact of IRCA is the same expressed in Hoffman’s dissent and rejected by the majority. Salas’ citation of opinions that disagree with Hoffman’s analysis is part and parcel of his argument that the Supreme Court wrongly decided the case. Farmer Brothers Coftee v. Workers’ Compensation Appeals Board (2005) 133 Cal. App.4th 533, directly addresses Hoffman’s holding that an award of backpay to an undocumented worker conflicts with and is an obstacle to IRCA. In holding that an undocumented worker was entitled to worker’s compensation benefits, Farmer Brothers stated: Weconcludethat the Workers' Compensation Act, with the addition of section 1171.5 prohibiting reinstatement remedies to undocumentedaliens, is not in conflict with the IRCA and comports with 9 the reasoning of Hoffman, supra, 535 U.S. 137, since prohibited remedies necessarily include backpay. (/d. at p.542.) Abel Verdon Construction y. Rivera (KY 2010) 348 S.W. 3d 749, which held that IRCA did not preempt the application of Kentucky’s workers’ compensation statute to an undocumented worker,stated: Hoffman does not support the conclusion that Verdon [the employer] seeks. A federal law preempts a state law implicitly whenit is impossible to comply with both of them or whenthestate law creates an obstacle to accomplishing federal objectives. Unlike the statute at issue in Hoffman, Chapter 342 [Kentucky’s workers’ compensation statute] does not conflict with the objectives of the IRCA, which are to deter employers from hiring unauthorized aliens and to deter aliens from entering the United States illegally in order to obtain employment. Nor does Chapter 342 permit an unauthorized alien to be compensated due to the termination of an employmentthat itself is illegal. (/d. at p. 755 [Emphasis added] [Footnote omitted].) In Grocers Supply, Inc. v. Cabello (Tex.App. 2012) 390 S.W .3d 707, the court held that the IRCA did not preempt Texas 10 tort law so as to preclude damage awards to undocumentedaliens: For its preemption argument, Grocers relies predominantly on Hoffman and some federal and state court opinions in which courts have concludedlost wagesare barred or otherwise preempted by IRCA. . .. We conclude, based on our analysis, that Hoffman does not mandate preemption of the Cabellos' lost wage and earning capacity claims. First, Hoffman wasnot a preemption case. The Supreme Courtin that case was addressing the relationship between IRCA and the NLRA,twofederal statutes, and an employer's illegal firing of an illegal alien. Federalism concerns were neither at issue nor addressed... . Hoffman also was decided on limited grounds. The question before the Supreme Court was whether the NLRB had the discretion to "select and fashion remedies for violations of the NLRA"that were in conflict with "policies underlying IRCA." Hoffman, 535 U.S. at 142, 149... . Contrast Hoffman with the Cabellos' tort claims and the jury's awards. Weare not presented with a question of discretionary authority of a federal agency such as the NLRB to fashion remedies for violation of a federal act--discretion the Supreme Court previously had held to be limited. We are instead presented with the question of federal preemption of the field of common law torts--a field where States are traditionally given great latitude on state 11 sovereignty grounds. . . . In Hoffman, the Supreme Court emphasized its consistent holdings giving little or no deference to NLRB-fashioned remedies that exceeded the Board's remedial discretion. Hoffman, 535 U.S. at 149. The threshold we must apply for determining that IRCA has implicitly preempted Texas commonlaw is far higher than the threshold for determining whether a federal agency acted beyond its remedial discretion. Hoffman is not controlling here. Cd. at pp. 720-721.) Grocers’ analysis misses the point. Hoffman’s holding was based on the relationship between a backpay award for a NLRA violation and IRCA. The Supreme Court’s holding that a backpay award conflicted with and was an obstacle to IRCA wasthe basis for its decision that the NLRB did not have the authority to award backpay to an undocumented worker. The fact that Hoffman was not a “preemption case” does not diminish the force of its conflict analysis. Balbuena v. IDR Realty LLC (N.Y. 2006) 845 N.E.2d 1246, which held that IRCA did not preempt an award of lost wages for an employer’s failure to adhere to workplace safety requirements 12 stated: Aside from the compatibility of federal immigration law and our state Labor Law, plaintiffs here--unlike the alien in Hoffman --did not commit a criminal act under IRCA. Whereas the undocumentedalien in Hoffman criminally provided his employer with fraudulent papers purporting to be proper federal work documentation, there is no allegation in these cases that plaintiffs produced false work documents in violation of IRCA or were even asked by the employers to present the work authorization documents as required by IRCA. Notably, IRCA does not make it a crime to work without documentation. Hoffman is dependent on its facts, including thecritical point that the alien tendered false documentation that allowed him to work legally in this country (see Hoffman, 535 U.S. at 149). This was a clear violation of IRCA. Wesee no reason to equate the criminal misconduct of the employee in Hoffman to the conduct of the plaintiffs here since, in the context of defendants’ motions for partial summary judgment, we must presumethat it was the employers who violated IRCA byfailing to inquire into plaintiffs’ immigration status or employmenteligibility... . (7d. at p. 360.) In Asylum Co. v. D.C. Dept. ofEmployment Services (D.C. 2010) 10 A.3d 619, the court held that Hoffman did not preclude 13 workers’ compensation awards to undocumentedaliens: In contrast -- and contrary to the Employer's assertion -- the award in issue here is not an award of back pay, but instead is an award of wage-loss benefits. Wage-loss benefits are "predicated upon the loss of wage-earning capacity." .. . Their purpose is to compensate a workerfor _ inability "to earn a living . . . because of a work-related injury or illness." ... Thus, wage-loss benefits under the Act are not designed to make a worker whole for what he would have earned if he had continued working for his employer during the disability period... . Accordingly, unlike the back pay award in Hoffman, the award in this case did not conflict with IRCA by requiring the employer to pay "wages that [the undocumented worker] could not lawfully have... . earned.” Hoffman, 535 U.S. at 149. For that reason, we agree with courts that have held that Hoffman does not preclude awards of workers'-compensation- type wage-loss benefits to undocumented aliens. (Cd. at pp. 632-633 [Citations omitted.] [Footnotes omitted].) Ill. CONCLUSION. The conflict between an award of backpay and IRCA identified in Hoffman applies to an undocumented FEHAplaintiff’s compensatory damages claim. Neither Salas’ argument, nor any of 14 the authority he cites, provides a rationale to exempt an undocumented FEHAplaintiff’s compensatory damages claim from Hoffman’s conclusion regarding IRCA that “[t]here is no reason to think that Congress nonetheless intended to permit backpay.” (535 U.S. at p. 149). Dated: June 11, 2013 Respectfully submitted, FREEMANJ) By ] / ARNOLDJ..WOLF Attorneys for Defendant and Respondent Sierra Chemical Co. 15 CERTIFICATE OF WORD COUNT (Calif. Rule of Court 8.204(s)(1)) The test of this brief consists of 3351 words as counted by the word processing program (Word Perfect) that was used to generate this brief. Dated: June 11, 2013 FREEMAN FIRM » LV Le ARNOLD J. WOLF Attorneys for defendant/respondent Sierra Chemical Co. 16 PROOF OF SERVICE I hereby certify that I am a citizen of the United States, over the age of eighteen years, and not a party to this action. My business address is 1818 Grand Canal Boulevard, Suite 4, Stockton, California 95207. I served the foregoing documententitled: RESPONDENT’S SUPPLEMENTAL REPLY BRIEF Service by United States Mail: / by placing a true copy thereof enclosed in a sealed envelope or package with postage thereon fully prepaid in a box or receptacle designated by my employerfor collection and processing of correspondence for mailing with the United States Postal Service, addressed as set forth below. I am readily familiar with the business practices of my employer, FREEMANFIRM,for the collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, the correspondenceplaced in the designated box or receptacle is deposited with the United States Postal Service CO-COUNSEL FOR APPELLANT CO-COUNSEL FOR APPELLANT VICENTE SALAS: VICENTE SALAS: David C. Rancafio, Esq. Christopher Ho, Esq. Rancafio & Rancafio, PLC Araceli Martinez-Olguin, Esq. 1300 10" Street, Suite C The Legal Aid Society- Modesto, CA 95354 Employment Law Center 180 MontgomeryStreet, TRIAL COURT: Suite 600 Clerk, San Joaquin County San Francisco, CA 94104 Superior Court 222 E. Weber Avenue Stockton, CA 95202 17 CO-COUNSEL FOR APPELLANT VICENTE SALAS: Pine & Pine Norman Pine 14156 Magnolia Blvd. Suite 200 Sherman Oaks, CA 91423 ATTORNEYS FOR AMICUS CURIAE Harold M. Brody, Esq. Proskauer Rose LLP 2049 Century Park East, Ste 3200 Los Angeles, CA 90067 Julia L. Montgomery, Esq. California Rural Legal Assistance Foundation 2210 K. Street, Suite 201 Sacramento, CA 95814 James C. Harrison, Esq. Margaret R. Prinzing, Esq. Remcho, Johansen & Purcell, LLP 201 Dolores Avenue San Leandro, CA 94577 Julia Harumi Mass, Esq. American Civil Liberties Union Foundation of Northern Cal., Inc. 39 Drumm Street San Francisco, CA 94111 APPELLATE COURT: Court of Appeal Third District of California 621 Capitol Mall, 10" Floor Sacramento, CA 95814 Cynthia L. Rice, Esq. Kate Hegé, Esq. California Rural Legal Assistance, Inc. 631 Howard Street, Suite 300 San Francisco, CA 94105 Jason Rabinowitz Beeson, Tayer & Bodine 483 Ninth Street, 2" Floor Oakland, CA 94607-4051 William A. Herreras, Esq. P.O. Box 387 Grover Beach, CA 93483 Jennifer Chang Newell American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Stephen E. Taylor, Esq. Stephen McG. Bundy, Esq. Joshua R. Benson, Esq. Taylor & Company Law Offices, LLP One Ferry Building, Suite 355 San Francisco, CA 94111 Della Barnett, Esq. Michael Caesar, Esq. Impact Fund 125 University Avenue,Ste 102 Berkeley, CA 94710 Linton Joaquin, Esq. Karen C. Tumlin, Esq. Josh Stehlik, Esq. National Immigration Law Center 3435 Wilshire Blvd., Ste. 2850 Los Angeles, CA 90010 Eunice Hyunhye Cho, Esq. National Employment Law Project 405 14” Street, Ste. 1400 Oakland, CA 94612 The acts described above were undertaken and completed in San Joaquin County on June 11, 2013. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct, and that this declaration was executed on June 11, 2013, at Stockton, California. 19 Angela N. Yess