Daisy Construction Company (“Daisy”) hired Jose Campos in 2008, but it did not verify his social security number despite the availability of e-Verify. One day while working on a traffic crew, Campos was thrown from the back of a truck and injured his shoulder and back. Campos could not work, and he started receiving total disability benefits.
Daisy’s workers’ compensation carrier asked Daisy to investigate Campos’ social security number. It was invalid. When Campos could not provide a valid social security number, Daisy terminated his employment. At about the same time, Daisy hired a doctor to re-evaluate Campos’ medical condition. The doctor concluded that Campos remained partially disabled, but he could perform light-duty work. Daisy had light duty jobs available, and it told Campos that he would be eligible for one of those jobs if he provided a valid social security number. Because he is an undocumented alien, Campos was unable to comply.
Daisy then sought to terminate Campos’ disability benefits. Delaware’s Industrial Accident Board (“Board”) determined that Campos was not eligible for total disability benefits, because he physically was able to work. The Board also found that Campos was ineligible for partial benefits, because he could have returned to a light duty job at Daisy but for his immigration status. The Delaware Superior Court affirmed the Board’s decision, “holding that Campos did not qualify for partial disability because his inability to work stemmed from his lack of a valid social security number and not from a work-related injury.”
The Delaware Supreme Court reviewed these decisions and reinstated Campos’ eligibility for partial disability benefits under the Workers Compensation Act. Campos v. Daisy Construction Company, Del., No. 33 2014, 11/13/14. It found that Daisy’s offer to re-employ Campos in a light duty position was not sufficient proof that work was available to Campos, because Campos does not have a valid social security card. Theoretical job availability was not enough. Daisy had to prove that jobs were actually available to Campos. The Court acknowledged this may be a difficult burden given Campos’ status as an undocumented worker, but decided that it was a burden appropriately borne by the employer.
The Court determined this is the most appropriate interpretation of the Workers Compensation Act because: (1) it is most consistent with the plain terms of the statute and judicial precedent; (2) treating undocumented workers equally under the Workers Compensation Act reduces the incentive for employers to hired undocumented workers and thus the incentive for illegal immigration; and (3) it ensures that all workers are not exposed to excessive risk, because employers are required to bear the full cost of operating an unsafe workplace.
The Court further explained:
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 … [W]e decline to endorse this blueprint for the denial of benefits. [] Embracing Daisy’s position would encourage employers to relax their hiring practices and employ undocumented workers, which would ultimately heighten, not dampen, illegal immigration … [If we] excuse employers from paying partial disability benefits to undocumented workers, employers’ economic incentives to hire undocumented workers instead of legal ones, especially for high-risk jobs (such as those in the construction industry), will increase.
A worker’s immigration status is not going to be a defense to liability for workers’ compensation benefits. In fact, an employer that does not check work authorization could end up on the hook indefinitely when benefits may have otherwise terminated.