GEORGE THE BARTENDER’S DISPATCHES FROM OFFLINE HAPPY HOUR – WHEN AN EMPLOYEE’S IMMIGRATION STATUS AFFECTS WORKERS’ COMPENSATION BENEFITS
After two weeks of rain, I owed my dog Freeway some much-needed outdoor time. We bundled up and began our customary walk around our neighborhood. As we approached the home of noted applicant attorney, Steve Brewberry, Freeway began to whine loudly. I realized that Freeway was anticipating stopping for conversation with Steve, which would impede our walk. As I didn’t see Steve outside his home, I told Freeway not to fret as there was no reason for us to stop.
No sooner had I said this though than Steve appeared outside his home, calling to us. With a loud harrumph Freeway laid down beside me.
Steve and I exchanged courteous hellos. Steve then dove right into talking shop. He had a new case with an admitted injury. The employer paid some temporary disability (TD) benefits. A few months later, the employer learned the employee was an undocumented immigrant. The employer had broached the subject with the employee, letting her know that her employment had to end, but offered to let her resign. She resigned.
A year later her treating orthopedist found her in need of modified work. He said if her restrictions could not be accommodated, she would be temporarily totally disabled (TTD). The employer refused to pay any more TD benefits. Steve filed for an Expedited Hearing.
He asked me to agree with his rhetorical question, “Isn’t this outrageous?” He went on, “The primary treating physician (PTP) imposed the work restrictions over a year ago. Every six weeks up to last Thursday they continued to find her TD if modified was not available. We are owed over a year of TD. Later I’ll ask for penalties, interest, and sanctions.”
Unfortunately, I had to tell Steve about a recent Workers’ Compensation Appeals Board (WCAB) panel decision Flores v. Westside Accurate Courier Services 2021 Cal. Wrk. Comp. P.D. LEXIS 191, which held that an injured worker is not entitled to TD when they are not returned to modified work because of their status as an undocumented immigrant.1
Flores was based on the California Supreme Court holding in Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407 [173 Cal.Rptr.3d 689, 327 P.3d 797], which held that an employer could not be liable for benefits/compensation incurred after it learned that the employee could not be employed because of their undocumented status.2 In Flores the applicant’s inability to work was not due to employer conduct. The applicant was not returned to work as they could not be legally employed under federal law.
In Flores after an admitted neck injury on August 23, 2018, the applicant then returned to work. They were briefly paid TD benefits from February 9, 2019 through February 26, 2019. While considering applicant for a promotion in the summer of 2019 the employer discovered a problem with their Social Security number and determined they were an undocumented immigrant.
The employer then gave the employee the option of resigning or being fired, as company policy prohibited employing those who could not legally work in the United States. The applicant opted to resign because they believed that their employer would rehire them once their immigration status was resolved. The resignation occurred on July 25, 2019.
I told Steve that the issue framed for trial was as follows:
Where the injury is admitted, where the medical reports state that applicant can only do modified duty and modified duty is not available so that applicant is temporarily disabled, and where the employer discovered that the applicant is ineligible to work after the time of the date of injury and where applicant resigned after being told that she could not continue her employment, is applicant entitled to temporary disability?
On April 7, 2021, a workers’ compensation judge (WCJ) issued a Findings and Order finding that the applicant did sustain an injury but was not entitled to TD benefits. Applicant filed a Petition for Reconsideration, arguing that their immigration status was not relevant to their workers’ compensation claim, and they were owed TD benefits from their employer after being “constructively discharged.”
I explained to Steve that the WCAB stated there was no dispute that the applicant suffered a work injury on August 23, 2018, or that they were temporarily partially disabled as of August 19, 2020, or that their employment ended on July 25, 2019. What the WCAB did see as a flaw in the applicant’s argument was their failure to address whether the defendant was liable for TD benefits after learning the worker’s immigration status.
The WCAB cited California Labor Code §1171.5 which states in relevant part:
The Legislature finds and declares the following: (a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (emphasis added)
I pointed out to Steve that this is where Salas comes into play. In Salas the California Supreme Court considered whether an employer was liable for lost wages after it discovered the undocumented status of an employee. The Court held that a lost pay award was not available to an undocumented worker for a period after discovery of their undocumented status.
In Flores the WCAB concluded:
Defendant could only offer applicant modified work if it re-hired applicant, which, based on the Supreme Court ruling in Salas, would be a violation of federal law. Complying with the federal law that prohibits an employer from employing an injured worker does not make the employer liable for benefits claimed by the injured worker.
I added that the WCAB analogized cases in Flores where the WCAB held TD is not owed to employees terminated for good cause.3 It does not matter whether the applicant resigned or was constructively discharged. The employer cannot legally employ them and therefore cannot be liable for benefits incurred after it learned that the applicant could not be employed. The applicant’s inability to work is not the result of defendant’s conduct as the applicant cannot legally be employed. The employer was not liable for, and applicant not entitled to, TD benefits for any period of disability caused by their injury after the end of their employment on July 25, 2019, which was due to their undocumented status.
I wrapped up my dissertation by telling Steve his case was coincidentally on all fours with Flores. I was pessimistic for his chances for a successful outcome. He might win at trial if the employer’s attorney did not know about Flores and/or does not write a trial brief, or if they didn’t file a Petition for Reconsideration. If they did, however, any WCAB panel would probably rule against Steve, citing Flores and Salas.
At this I bid Steve adieu and nudged Freeway from his slumber. We gleefully continued our walk.
All characters from my walk around the neighborhood are fictional and the storyline is simply a product of my vibrant imagination.
It is important to remember that the line divining when an injured employee is owed workers’ compensation benefits is the date upon which the employer discovers whether or not an employee can legally work in the United States. Salas is worth a read to see how the California Supreme court arrived at their decision.
Flores lacks the designation “significant panel decision,” however, the WCAB may consider panel decisions to the extent that it finds their reasoning persuasive, as laid out in its en banc decision Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, 242, fn. 7.
Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, would draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We continue to venture out into the world when we can, taking in the pleasures of the neighborhood on strolls with our favorite canine friends. Cheers friends and keep washing your hands.
1 A copy of Flores can be obtained via email request.
2 A copy of Salas can be obtained via email request.
3 Those cases are: Butterball Turkey Co. V. Workers’ Comp. Appeals Bd. (Esquivel) (1999) 65 Cal.Comp.Cases 61 (writ den.) and Peralta v. Party Concepts (2016) 2016 Cal.Wrk.Comp. P.D. LEXIS 100 (Appeals Board panel decision).