Undocumented Workers are entitled to WC Benefits

In a landmark decision, the Appellate Court affirmed an order from the Circuit Court of Cook County which confirmed the decision of the Illinois Workers' Compensation Commission that awarded the Petitioner permanent total disability (PTD) benefits pursuant to the Workers' Compensation Act, Economy Packing Co v. Illinois Workers' Compensation Comm'n, 2008 WL 5205004 (Ill.App. 1 Dist).

Petitioner was a 60‑year‑old Mexican national who came to the United States in 1982. She attended school for three years in Mexico and did not receive any additional education beyond that. She could not speak, read or write in English, nor could she drive. Petitioner was hired in 1992 by Economy Packing to work on an assembly line deboning chickens. She did not have the necessary paperwork to legally obtain employment in the United States and she used false documents to apply for the job with Economy Packing. Petitioner injured herself on May 7, 2002 when she slipped and fell at work. The fall resulted in severe injury to her right shoulder, which necessitated surgery. Following reconstructive surgery of her right shoulder, postoperatively, she was able to return to work within the restrictions prescribed by her treating doctor of no lifting more than 10 pounds and no overhead work. This prevented the Petitioner from returning to her job at Economy Packing. After being found at maximum medical improvement on April 15, 2003, her treating doctor permanently restricted her work activities to no lifting more than 10 pounds and no work above shoulder level. Her doctor further opined that she could no longer return to work at the assembly line job, which required use of the upper extremity. Her treating physician opined that she could be gainfully employed in an occupation that did not require these activities.

Petitioner's vocational expert opined that because of the claimant's age, limited education and communication skills, as well as her work restrictions that limited her to less than sedentary work, there was no stable labor market in which she was employable. The vocational expert further testified that the Petitioner would not be employable notwithstanding her immigration status.

The vocational expert retained by Respondent reached the opposite conclusion. After performing a labor market survey, he opined that Petitioner would be capable of performing a wide range of unskilled sedentary work occupations such as a fast-food worker, laundry worker or sandwich maker. He further opined that she could do these positions by ignoring her inability to legally obtain employment. Both vocational experts concurred that the Petitioner was not a candidate for vocational rehabilitation given her lack of transferable skills.

The Arbitrator placed greater weight in the opinion of Petitioner's expert and found that the claimant's age, lack of education, lack of transferable skills, inability to speak English and physical restrictions rendered her unfit to perform any but the most menial task for which no stable labor market exists. The Arbitrator awarded the Petitioner PTD benefits. In determining that the Petitioner was entitled to PTD, the Arbitrator noted that she was permanently and totally disabled under the "odd-lot" category. The Commission affirmed and adopted the Arbitrator's decision.

Respondent argued that a different standard should apply when determining whether suitable employment is available to an undocumented alien, as potential employers are barred by the Immigration Reform and Control Act of 1986 (IRCA) (8 U.S.C. §1324a et seq. (2000) from hiring undocumented aliens regardless of their physical capabilities and therefore an undocumented alien is always unemployable. Respondent asserted that before an undocumented alien can receive PTD under the "odd-lot category, the claimant must establish that she is not employable due to her age, training, education and experience in a country where she is legally entitled to work.

Pursuant to the IRCA, it is unlawful for an employer to knowingly hire an undocumented alien. 8 U.S.C. §1324a(a)(1)(A) (2000). To enforce this policy, the IRCA mandates that employers verify that a newly hired individual is authorized to work in the United States by examining specific documents. 8 U.S.C. §1324a(a)(1)(B) (2000). If an employer later discovers that it unknowingly hired an undocumented alien, or if tan alien becomes unauthorized to work while employed, the employer must discharge the worker. 8 U.S.C. §1324a(a)(2) (2000). The IRCA also makes it unlawful for an alien to use or attempt to use "any forged, counterfeit, altered, or falsely made document" or "any document lawfully issued to or with respect to a person other than the possessor" for the purpose of obtaining employment in the United States. 8 U.S.C. §§1324c(a)(2),(a)(3) (2000).

The Court next addressed the issue of whether a state law allowing undocumented aliens who sustain workplace injuries to recover workers' compensation benefits is preempted by the IRCA. It was undisputed that the Petitioner violated the provision of IRCA by using false documents to obtain employment with Respondent. The Court found that the IRCA does not expressly preempt state laws allowing undocumented aliens, who sustain work place injuries, to recover workers' compensation benefits, including PTD benefits. It found that the express provision in the IRCA that preempted any state or local law pertained to imposing of civil or criminal sanctions upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. §1324a(h)(2) (2000) and that workers' compensation benefits are designed to compensate an employee for injuries arising out of and in the scope of employment regardless of fault, and therefore, cannot reasonably be considered a sanction. Thus, no express preemption by the IRCA.

Next, the Court determined whether the state law may be preempted by the IRCA through implication and they considered the applicability of field preemption and conflict preemption.

Field preemption occurs where "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." (Citations Omitted). The Court added "although the IRCA thoroughly addresses the hiring of undocumented aliens, nothing in the IRCA or its accompanying regulations indicates that Congress sought to supersede state laws providing workers' compensation benefits to injured employees, whether undocumented or otherwise. To the contrary, the IRCA's legislative history suggests that the statute was not intended to undermine or diminish in any way labor protections in existing law." (Citations Omitted). The Court concluded that filed preemption does not bar an award of PTD to undocumented aliens under the Act.

Under the doctrine of conflict preemption, conflict preemption exists where compliance with both federal and state regulations is a physical impossibility. (Citations Omitted). The Court reviewed the U.S. Supreme Court case of Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 152 L.Ed.2d 271, 122 S.Ct. 1275 (2002). In that case the Supreme Court found that a citizen of Mexico who was unlawfully terminated for supporting efforts to unionize was not entitled to back pay. The worker in that case had gained employment by presenting false work documents in violation of the IRCA. The Supreme Court found that the National Labor Relations Board had no authority to award back pay to an undocumented alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud.

The Appellate Court in this case, however, distinguished the facts from Hoffman in that the Petitioner in this case suffered a loss of earnings unrelated to her violation of the IRCA. In Hoffman, had the employer not terminated the undocumented worker for attempting to unionize, the IRCA effectively would have required that the worker be discharged anyway due to his undocumented status. The Appellate Court found that the award of PTD benefits to the Petitioner was separate and distinct from any continuing violation of the IRCA and therefore did not conflict with Federal Immigration policy. The Court reasoned that the primary purpose of the IRCA is to diminish the employment magnet that attracts aliens to the United States illegally (Citations Omitted), however they did not believe that undocumented workers would flock to the United States merely because they would be eligible for workers' compensation benefits in the event they were injured on the job. Rather, the public policy in excluding undocumented aliens from receiving workers' compensation benefits would relieve employers from providing benefits to such employees thereby creating an incentive for employers to hire undocumented workers in order to avoid liability for workers' compensation benefits. The Appellate Court found that IRCA did not preempt, either expressly or implicitly, an award of PTD benefits to an undocumented alien.

The Court then analyzed other jurisdictions whose State Courts held that IRCA did not preempt their Workers' Compensation Statutes or Laws. These states included California, Colorado, Connecticut, Florida, Georgia, Maryland, Minnesota, New Jersey, North Carolina, Oklahoma and Pennsylvania. In fact, the only jurisdiction where an award of workers' compensation benefits was found to be preempted by IRCA was in Nevada, however, that case pertained to the award of vocational rehabilitation benefits that would facilitate future employment within the United States.

Having found that the IRCA did not preempt the Commission's authority to award permanent total disability benefits to an undocumented alien the Court then looked to whether an undocumented alien could prove that she is totally and permanently disabled pursuant to the traditional tests under the "odd-lot" theory of PTD.

Two ways a Petitioner can ordinarily satisfy their burden of proving that they fit into the "odd-lot" category is by (1) showing a diligent, but unsuccessful, job search or by (2) demonstrating that because of her age, training, education, experience and condition that she's unable to engage in stable and continuous employment. Westin Hotel v. Industrial Comm'n, 372 Ill.App.3d 527, 544, 865 N.E.2d 342 (2007). Once the employee has initially established the unavailability of employment to a person in her circumstances the burden then shifts to the employer to show that suitable work is regularly and continuously available to the employee. Valley Mold & Iron Co. v. Industrial Comm'n, 84 Ill.2d 538, 547, 419 N.E.2d 1159 (1981).

Economy's argument that the traditional tests of whether an employee falls into the "odd-lot" category cannot be applied to undocumented aliens because an undocumented alien's immigration status renders her unemployable as a matter of law and under such circumstances an alien would always be able to demonstrate and an employer would be unable to refute that no jobs are available regardless of the alien's condition was not without merit.

So how do you prove that an undocumented worker is entitled to PTD benefits? It seems that in order to do this one has to create a legal fiction in that the undocumented alien has the initial burden of proving that she cannot sustain regular employment in a well-known branch of the labor market without regard to her undocumented status. The burden would then shift to the employer to produce sufficient evidence that suitable jobs would regularly and continuously be available to the undocumented worker, but for her legal inability to obtain employment. This, then creates a question of fact to be resolved by the Commission. In this case, the Petitioner's vocational expert believed that based upon the claimant's age, her limited education and communication skills and her work restrictions that no stable labor market existed in which the claimant was employable. The Petitioner's vocational expert further testified that given the Petitioner's current circumstances, she would not be employable even if she were a citizen of the United States. Respondent's vocational expert disputed that opinion and opined that Petitioner could be gainfully employed in the current labor market. The Arbitrator whose decision was adopted by the Commission placed greater weight in the Petitioner's expert and because the vocational expert's opinion was not based upon her legal right to work in the United States, but rather her condition and was supported by competent evidence, the Court held that the Commission's decision to award PTD benefits was not against the manifest weight of the evidence.

In concurring with the decision, Justice Holdridge noted that the language of the Act, plainly shows that the legislature's intent was to include illegal aliens as employees. He reasoned that legal aliens are covered by the Act because of the application of the statutory language as plainly written. The Act originally defined the term "employee" as "every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and minors who are legally admitted to work under the laws of the state." (Citation Omitted). He reasoned that if the legislature wanted to delineate between legal and illegal workers of a particular type it would have done so explicitly as evidenced by its treatment of minors, but there was no such delineation that applied to aliens and the relevant statutory language remains unchanged today.