The U.S. Department of Homeland Security reports undocumented immigrants make up approximately 3.5 percent of the U.S. population and an even more sizable portion of the workforce. Many of them work in industries and positions that tend to be inherently more dangerous. When they suffer work-related injuries, they are entitled to receive workers’ compensation. Even though these individuals aren’t authorized to work in the U.S., these companies don’t get a break on paying benefits just because the workers they chose to hire don’t have the proper documents – at least not in North Carolina.
Still, these worker may face additional legal complexities that workers with legal immigration status do not face.
A recent workers’ compensation case out of Delaware details one such case. In Roos Foods v. Guardado, the plaintiff worked as a machine manager for the defendant food processing company when she was involved in a work-related accident and injured her wrist. Thereafter, she received total disability benefits. Later, her employer petitioned the industrial board, asking that those benefits be terminated because the worker was no longer totally disabled.
The trial court denied this request, finding that while the employer did show the worker wasn’t totally disabled anymore, the worker was a prima facie displaced worker solely based on her immigration status, and the employer failed to show that there were regular employment opportunities within her capabilities.
The defendant appealed to the Delaware Supreme Court, where the justices were asked to determine whether an injured worker’s immigration status alone renders her a displaced worker and whether the board was correct in finding the employer failed to meet its burden of showing regular employment opportunities existed within the worker’s capabilities because it did not take into account her undocumented status.
The court held that a worker’s undocumented immigration status isn’t relevant to a prima facie finding that she is a displaced worker. However, it is a relevant factor in determining whether she is actually displaced. The court further held the board was right to reject the regular employment opportunities evidence submitted by the employer because it failed to consider the worker’s undocumented status.
This was a significant win for vulnerable workers, who are often reticent to come forward and report injuries in the first place, for fear they will be demoted, fired, or deported.
In this case, the injury occurred in June 2010. She received total disability benefits until June 2014, when she underwent surgery. After that, her doctor released her to light-duty, one-handed work. Her right hand – the dominant one – was not injured.
A doctor later testifying on behalf of the employer before the board opined the worker could do one-handed, light-duty work, such as desk work or any other work that didn’t require manipulation with both her left and right hands. A vocational expert identified eight different jobs she believed the plaintiff could perform in spite of her disability. These included sorter at a thrift store, car wash attendant, housekeeping, food service at a local hospital, or fast-food worker at local restaurants. The doctor indicated she would probably have trouble in the car wash or housekeeping positions.
The appeals court said even if it accepted those jobs, the labor market survey failed to take into account the plaintiff’s undocumented status, apparently because the person preparing the report did not know this. Also, she was 38 years old, she had worked at her previous job for five years, it was the only job she’d ever had, she had the equivalent of a high school education in her native El Salvador, and she does not speak or write English. She came to the U.S. 12 years ago and has no legal documentation. She testified she had tried to look for work but was unable to find any.
The court accepted the board’s finding that the plaintiff was no longer totally disabled, but it rejected the market survey and found the worker to be displaced.
Companies that seek to terminate a claimant’s total disability benefits have to show a claimant isn’t completely incapacitated, but this can be refuted by a worker who shows he or she is displaced.
As this case shows, businesses that take the risk of hiring undocumented workers may also take the risk of paying workers’ compensation disability benefits for much longer than they anticipated.
Contact the Carolina workers’ compensation lawyers at the Lee Law Offices by calling 800-887-1965.
Roos Foods v. Guardado, Nov. 29, 2016, Supreme Court of Delaware
More Blog Entries:
Report: North Carolina Work Injury Rate Drops, Nov. 25, 2016, North Carolina Work Injury Lawyer Blog