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Campos v. Daisy Constr. Co., --- A.2d ----, 2014 WL 7011818 (Del. Nov. 13, 2014)

Undocumented worker’s immigration status, although a bar to employment, does not relieve Employers of their obligation to show job availability in the context of a termination petition.

Claimant, Jose Campos, suffered work-related injuries to his back and shoulder. After a compensable shoulder surgery he was unable to return to his employment with Daisy Construction. The workers’ compensation carrier requested investigation into the validity of Claimant’s social security number; that number turned out to be invalid. Employer offered Claimant light-duty work (consistent with his medical restrictions) at his pre-injury wage rate, if Claimant could cure his undocumented immigration status. The Board concluded that Employer had met its burden for termination of total disability benefits and declined to award partial disability benefits on the basis that Claimant’s reduced earning capacity was unrelated to the work injury, but rather to his immigration status. Claimant appealed to the Superior Court and that Court affirmed the Board. Appeal was taken to the Delaware Supreme Court.

The Supreme Court (en banc) reversed. The Court concluded that Claimant was eligible for partial disability benefits. The Court reasoned that the Employer was not relieved of proving job availability and a corresponding residual earning capacity because of Claimant’s undocumented status. The Court explained three bases for its decision.

First, consistent with Delaware Valley Filed Services v. Ramirez, undocumented workers are considered employees within the statutory workers’ compensation scheme in Delaware; thus, they are entitled to the full menu of benefits under the statute.

Second, consistent with federal immigration law (Immigration Reform and Control Act of 1986) employers have a positive obligation to verify immigration status of employees. By holding employers responsible for showing job availability – taking into account the undocumented status of the injured worker – employers are incentivized to follow federal immigration requirements. The Court analogized that were they to reach an alternate conclusion, employers would be able to hire undocumented workers, not verify their status and only after injury discharge their workers’ compensation obligations by “discovering” that their employee was undocumented. The Court determined that such a holding would be inconsistent with federal policy and the aims of the Delaware workers’ compensation statute.

Third, the Court explained that public policy dictates that the full costs of a work injury should be borne by employers. The Court reasoned that workplace safety for all Delaware workers would be improved if employers were held responsible for all work injuries, particularly in higher risk fields of employment (such as those typically employing undocumented workers).

The Court, in dicta, suggested that the burden of job availability may be relieved if an employer complied with the federal requirement and utilized immigration verification resources (such as E-Verify) and yet an employee was hired that turned out to be undocumented.

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