The employee acknowledges that he was unable to provide the employer with adequate written explanation as to his eligibility to work in the United States because he is an unauthorized alien, but he asserts that he would have accepted the job offer if the employer would have allowed him to return without the written explanation.  In effect, the employee is contending that his immigration status provides a reasonable excuse for his refusal of the offered employment and that he therefore should not be barred from receipt of temporary total disability benefits under the terms of Minn. Stat. ' 176.101, subd. 1(i).  We are not convinced.

 

As noted by the supreme court in Correa, it is illegal under the Immigration Reform Control Act [IRCA] for an employer to knowingly employ unauthorized aliens, and the IRCA requires employers to check certain documentation of citizenship or immigration status for all employees.  Correa, 664 N.W.2d at 329, 63 W.C.D. at 357-58.  The employer in the instant case offered continued employment to the employee within the employee=s physical limitations, thus meeting its obligations under Minn. Stat. '176.82, subd. 2, and, because the employer was aware that the employee had used different identification at the hospital following his work injury, it was not only reasonable, but in keeping with policies underlying the IRCA, for the employer to have conditioned its job offer on proof of the employee=s eligibility to work in this country.  The employee=s sole reason for failing to accept the offered job was the fact that he was an unauthorized alien, and his basis for failing to respond to the job offer does not fit within the exceptions earlier carved out for continued eligibility for benefits after refusal of otherwise suitable work.  To allow unauthorized alien status to provide Areasonable@ grounds to effectively refuse work is inconsistent with the policies underlying both the IRCA and the Minnesota Workers= Compensation Act, where, as here, the employer cannot be faulted for hiring the employee to begin with and did everything it could, under the law, to return the employee to employment following his injury.

 

The concerns raised by the dissenting opinion are not entirely without merit.  However, contrary to the dissent, we see no need for decision makers in the workers= compensation system to evaluate the legality of an employer=s job offer under federal immigration law, any more than it is necessary for those decision makers to evaluate the legality of an unauthorized alien=s job search efforts or post-injury employment.  Rather, the issue in the workers= compensation forum is whether the employer has made an offer of gainful employment, albeit with reasonable conditions, as contemplated by the workers= compensation act.  Any questions concerning potential violation of federal immigration law are for the federal system to address, for employers and workers alike.  Moreover, the position outlined in the dissenting opinion would give unauthorized aliens the right to wage loss benefits not available to other workers who are offered but refuse gainful employment that they are physically able to perform.  We can find no persuasive basis for concluding that the statutory provisions concerning cessation of temporary total disability benefits should apply only to employees who are legally entitled to work in this country, leaving employers that unwittingly hire unauthorized aliens with no way whatsoever to mitigate their liability.

Concluding that Correa is not controlling on the issue of an unauthorized alien employee=s entitlement to temporary total disability benefits following refusal of otherwise suitable gainful employment, and concluding that the compensation judge reasonably found the employee to have refused employment within the meaning of Minn. Stat. ' 176.101, subd. 1(i), we affirm the judge=s denial of temporary total disability benefits.

 

 

DISSENTING OPINION

 

DAVID A. STOFFERAHN, Judge

 

I dissent.  I would reverse the compensation judge and award compensation benefits.

 

Under federal law, it is unlawful for an employer to hire an individual who does not provide documents which are meant to establish eligibility for employment in this country. 8 U.S.C. ' 1324a (a)(1)(B)(i).  The employer must review those documents; the employer must have the employee attest to his or her eligibility for employment; and the employer must retain this information for later review.  8 U.S.C. ' 1324a (b).  While there is no obligation to verify the documents or to investigate the individual=s statement, it is unlawful to hire or to continue to employ an individual if the employer knows the individual is an unauthorized alien.  8 U.S.C. ' 1324a (a)(1)(A) and 8 U.S.C. ' 1324a (a)(2).  Whether or not an employer knows an individual is an unauthorized alien also includes the question of whether the employer possesses constructive knowledge of this fact, knowledge which may be inferred from the knowledge of certain facts and circumstances which would lead a person to know about a certain condition.  8 C.F.R. ' 274a. 1(l).

 

Accordingly, if an employer Aknows@ an employee is an illegal alien, the employer must terminate the employee. It follows that an employer may not make a job offer to an illegal alien since it would be unlawful for an employer to employ an illegal alien.  If a question arises about the employee=s eligibility to work in this country, it may seem reasonable for the employer to request additional documentation.  However, the request for more information or for additional documents other than those tendered by the employee may be unlawful as an unfair immigration-related employment practice.  8 U.S.C. ' 1324b (a)(6).  The record in this matter does not disclose whether the employer knew or had constructive knowledge that the employee was an illegal alien when the job offer was made.  It is not clear that the employer in this case had the right to make a job offer to the employee or to require the employee to produce additional verification of his immigration status as a condition of the job offer. It is not possible to conclude on the evidence before us that, as the majority states, the job offer was in accord with federal immigration law.

 

To determine if the employer made a valid job offer in the present case, the compensation judge would have to determine whether the employer knew or had constructive knowledge that the employee was an illegal alien.  If so, the employer was not able to send a job offer to the employee but was instead required under federal law to terminate the employee.  Even if the compensation judge found that the employer did not Aknow@ the employee was an illegal alien, a finding would still have to be made on whether the request for more information from the employee was unlawful under federal law and, if so, whether the job offer was valid.  To answer these questions, the compensation judge would have to consider federal case law that has developed in the eighteen years since the passage of the federal statute.  On appeal, this court and ultimately the Minnesota Supreme Court would be expected to decide if the compensation judge=s application of federal law was correct.

 

The issue in this case, whether an illegal alien is eligible for workers compensation benefits after losing a job because of his immigration status, has already been decided in Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 63 W.C.D. 353 (Minn. 2003).  While the facts in this case and the facts in Correa are somewhat different, it is a difference without significance.  In Correa the employee had returned to work with the employer after his injury and was then terminated when he was unable to verify his immigration status.  In the present case, the employee was not able to respond to a job offer because of his immigration status. 

 

The employer=s job offer in this case was conditioned upon documentary proof of the employee=s eligibility to work in the United States.  Because the employee was an unauthorized alien, it was impossible for the employee to obtain the required documentation.  Accordingly it was impossible for the employee to meet the requirements of the job offer.  A job offer which is impossible of acceptance is not an Aoffer of gainful employment@ within the meaning of Minn. Stat. 176.101, subd. 1(I).  We further observe, the result of the majority=s decision will be to effectively bar many injured aliens from the receipt of temporary total disability benefits.  Under the majority=s rationale, the Amistake@ made by  Mr. Correa=s employer was to bring him back to work instead of making the same conditional job offer to him that was made to the employee in this case.  Despite Correa, the result here is to conclude that illegal aliens are not entitled to temporary total disability benefits despite a reasonable job search.

 

Instead of deciding this case by attempting to determine whether or not the employer=s job offer was valid, a task which only can only be accomplished by interpreting federal statute, regulations, and case law, a better rule would be to conclude that the employee lost his job with the employer because of his immigration status as in Correa and to then focus, as in Correa, on the question of whether the employee had conducted a diligent job search.  It is not the role of this court to deal with the issue of illegal immigration and what public policy should be with regard to the employment of illegal aliens.  It is not the function of a compensation judge or within the jurisdiction of this court to interpret federal law.  Pursuant to Correa, the proper inquiry is whether an injured worker who lost his or her job because of immigration status has conducted a diligent job search and is therefore entitled to wage loss benefits. 

 

Since the parties in this case stipulated that the employee had engaged in a diligent job search, the employee should have been awarded temporary total disability benefits.