Delaware: Employer’s Offer to Rehire Undocumented Worker Is Not Bona Fide Since Worker Could Not Legally Accept It

The Supreme Court of Delaware has held that an injured worker’s undocumented status is a factor that should be considered in determining whether he is capable of returning to work, that just as the inability to secure work due to factors such as the claimant’s age, education, general background, occupational and general experience could be considered, so could his immigration situation. The employee sought to terminate workers’ compensation benefits on the grounds that it had offered to rehire him and that it would be pleased to do so if he submitted proper documentation. The court held that the offer was not bona fide since under federal law it could only hire the claimant if the claimant could present authorization to work, which he could not do. According to the court, the record established that a job at the employer’s facility was not in fact available to the claimant, since he did not have a valid social security card.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Campos v. Daisey Constr. Co., 2014 Del. LEXIS 543 (Nov. 13, 2014) [2014 Del. LEXIS 543 (Nov. 13, 2014)]

See generally Larson’s Workers’ Compensation Law, § 66.03 [66.03]

For a more detailed discussion of the case, see http://www.workcompwriter.com/delaware-employers-inability-to-rehire-undocumented-worker-following-injury-is-its-worry-not-the-workers/

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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