Yesterday the Delaware Supreme Court ruled that illegal aliens may collect benefits under 19 Del. Code Section 2325, known as “partial disability” or “diminished earning capacity.” The case in question belongs to my partner, Tim Lengkeek, on behalf of the injured worker, and is one for which decision from the high court has been awaited with much anticipation on the part of my colleagues in the work comp bar. Jose Campos v. Daisy Construction Company, Del. Supr., No. 33, 2014 (November 13, 2014) is the case in question and I called on the two lawyers involved (Tim and John Morgan for the employer) to provide the commentary:
The Supreme Court held that an employer/carrier cannot avoid paying partial disability to an illegal immigrant by claiming it would rehire him with his restrictions but cannot do so under federal immigration law because the employee was here illegally. In order words, an employer's hypothetical offer to rehire an illegal immigrant within his restrictions, if it could, was insufficient proof of job availability. Moreover, when it comes to partial disability the Court noted that an employer must take the employee "as it hired him."
Finally, the Court noted that "were we to decide this case differently, the playbook for employers wishing to reduce their labor costs by exploiting workers is simple. Turn a blind eye when hiring and enjoy employing workers reluctant to complain about low pay or workplace conditions. And, if one of these employees is injured, then, and only then, verify that employee's immigration status. When met with a demand for benefits, generously offer to re-hire the worker once he gets proper immigration status."
And John also graciously replied to my request for his take:
Obviously my client is disappointed in the Supreme Court Decision and does not agree with it. In particular my client does not agree that any job offer to Mr. Campos was anything other than a bona fide job offer. Between the time of the original June 2011 work accident and the subsequent September 2012 Termination Petition, my client regarded Mr. Campos as a good employee and so they actually did offer light duty work to him at no wage loss and he did return to work for a period of time with such restrictions. Thereafter, he was out of work again because of surgery and he was appropriately paid total disability benefits. The facts of this prior job offer, acceptance and return to work were noted by the Board and by the Superior Court and were, no doubt, important in the original decisions finding the subsequent job offer was also a bona fide offer of employment. My client actually wanted Mr. Campos to be able to submit to them proof of a valid social security number so that he could return to work with them once again and even though he had work restrictions.
It is also important to note that still to this day my client has no obligation to utilize the Department of Homeland Security’s E-Verify system to check social security numbers which are provided to them by new employees.
Finally, I do note that Mr. Campos did commit a fraudulent act when, at the time of his original fire, he intentionally provided to my client a false social security number and, as a result of the Supreme Court Decision, there seems to be no repercussion whatsoever as a result of his fraudulent act.
Tough issue and no doubt worthy arguments on both sides. Some states deal with this issue legislatively. Delaware’s outcome is certainly employee-favorable and swinging to the side of the liberal, some might say. Congrats to Tim on his victory and to the rest of you--consider yourself informed. And who says nothing big happens in Delaware?
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