JERSON RIVAS a/k/a MANUEL COYOTE-PLIEGO, Employee/Appellant, v. CAR WASH PARTNERS, and ZURICH NO. AM., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 4, 2004
JOB OFFER - REFUSAL. Where the employer conditioned its post-injury job offer on a satisfactory explanation as to the employee=s eligibility to work in this country, and where the unauthorized alien employee failed to respond to the offer because of his illegal immigration status, the compensation judge properly concluded that the employee had refused gainful employment within the meaning of Minn. Stat. ' 176.101, subd. 1(i) and was therefore ineligible for temporary total disability benefits.
Determined by: Wilson J., Rykken, J., Johnson, C J., Stofferahn, J. and Pederson, J.
Compensation Judge: Janice M. Culnane
Attorneys: Paul L. Pond, Reed & Pond, Mound, MN, for the Appellant. Lee J. Keller,Drawe & Heisick, Edina, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s denial of temporary total disability benefits based on the employee=s refusal of employment. We affirm.
The employee applied for work with Car Wash Partners [the employer] in April of 2003 under the name of Jerson Rivas. At the time of application, he was asked to complete an employment eligibility verification form [I-9 form]. He indicated on that form that he was a resident alien, and he provided the employer with a resident alien card with his name and photo on it and a social security card with his name and a social security number. The employee was hired to work as a production employee and began work on April 7 or April 9, 2003. It was the employer=s practice to hold a new employee=s documentation until the end of the first pay period, at which point it would be sent to the employer=s corporate office in Arizona for verification. The employee sustained an admitted work injury to his lower extremities on April 11, 2003, prior to the end of the first pay period.
The employee was taken to Hennepin County Medical Center by ambulance following the injury. Upon contacting the hospital, the employer discovered that the employee had been admitted under a different name than the one he had used for employment purposes.
The employer and insurer paid temporary total disability benefits, medical expenses, and rehabilitation benefits following the injury. On August 7, 2003, the employee was released to return to work with restrictions, and, on August 19, 2003, the employer, via the corporate office, provided the employee with a written job offer, consistent with those restrictions. The job offer was conditioned on the employee providing Aan adequate written explanation as to [his] eligibility to work in the United States.@ The employee did not respond to the job offer, and, on August 28, 2003, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits [NOID]. The employee objected to the NOID, and the matter proceeded to an administrative conference. Following the conference, a compensation judge allowed the discontinuance. The employee filed an objection to discontinuance, which proceeded to hearing on December 5, 2003.
At the hearing, the parties stipulated that the job offer from the employer to the employee was Aa suitable job that the employee was able to physically perform@ within his restrictions and physical abilities. The parties also stipulated that it was unlawful for the employer to hire an undocumented alien and that the employee had conducted a reasonably diligent job search continuing from August 7, 2003. During the hearing, it was revealed that the employee had gone to work for a different employer, at a wage loss, and the employer and insurer agreed to pick up temporary partial disability benefits.
In a decision issued on December 18, 2003, the compensation judge found that the employee=s failure to accept the offered job constituted a refusal, that the refusal was unreasonable, and that, due to the refusal, the employer and insurer were not liable for the claimed temporary total disability benefits. The employee appeals.
The employee contends that the issue before this court is whether an unauthorized alien is entitled to temporary total disability benefits for an admitted work injury if he performs a reasonable and diligent search for work. In support of his position as to entitlement, the employee cites the case of Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 63 W.C.D. 353 (Minn. 2003). However, as we see it, the issue on appeal is whether an unauthorized alien is eligible for temporary total disability benefits when he refuses an offer of gainful employment because of his immigration status. That issue was not considered or addressed in Correa, and, after review of the record and the applicable statute, we conclude that the compensation judge properly denied the claimed benefits.
Prior to 1995, Minn. Stat. ' 176.101, subd. 3e, governed suitable job offers, and Minn. Stat. ' 176.101, subds. 3l and 3n, provided that an employee who rejected a suitable job offer was permanently precluded from receiving further temporary total disability benefits, temporary partial disability benefits, or rehabilitation assistance. Case law carved out certain exceptions to the statute to allow an employee who Areasonably@ refused a suitable job to remain eligible for benefits.
In 1995, Minn. Stat. ' 176.101 was amended effective for injuries occurring on or after October 1, 1995. Pursuant to Minn. Stat. '176.101, subd. 1(i), temporary total disability benefits are to cease if the employee refuses an offer of gainful employment that the employee is physically able to perform. Following the change in the statute, the reasonableness of a refusal remains relevant to the question of eligibility for temporary total disability benefits.
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.
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.
 The employee=s real name is Manuel Coyote-Pliego, however, he was using the name Jerson Rivas at the time of his work injury.
 After his work injury, the employee admitted that the information that he had provided to the employer was false.
 The employee testified on direct examination that he would not dispute that he began work on April 7, 2003, if that is what the records showed. Dean Ngo, general manager for the employer in St. Louis Park, testified that the employee had already completed the I-9 form by the time he started work. The I-9 form is dated April 8, 2003, and the first report of injury indicates that the employee was hired on April 9, 2003.
 The employer had been prompted to impose this condition by the fact that the employee had been admitted to the hospital under a name, date of birth, and social security number that were different than those he had used on his I-9 form.
 See, e.g., Hillyer v. Jesco Inc., slip op. (W.C.C.A. Jan. 18, 1995) (affirming a compensation judge=s finding that the employee reasonably refused the offered job based on the late night hours and schedule that required the employee to work most weekends); Begin v. Thermo Serv., Co., 36 W.C.D. 404 (W.C.C.A. 1984) (determining that it was not unreasonable for a night shift worker to refuse the offered daytime job so that he could continue school).
 There is no current provision precluding an employee from receiving temporary partial disability benefits or rehabilitation benefits for refusal of gainful employment.
 See Hugill v. Benton County, slip op. (W.C.C.A. Mar. 10, 2004) (the employee unreasonably refused an offer of gainful employment where the offer appeared to have been made in good faith and the employee refused the job because she no longer trusted the employer and felt it would not be in her best interest to return to work there); Earley v. Harris Cos., slip op. (W.C.C.A. Oct. 29, 2002) (the employee unreasonably refused an offer of physically suitable employment where the compensation judge rejected the employee=s testimony as to his ability to perform the work); Parson v. Bureau of Engraving, Inc., slip op. (W.C.C.A. Oct. 26, 2000) ( the employee reasonably refused an offer of physically and economically suitable employment where the job would have caused a major disruption in her family life); Stellmach v. New Mech Cos., slip op. (W.C.C.A. July 23, 1999) (the employee reasonably refused an offer of gainful employment where it would have required him to either relocate or exceed his doctor=s restrictions on commuting).