Opinion Mondays: Those Hiring Undocumented Workers Should Not be Allowed to Game the System
In a deeply divided (3-2) decision, a New York appellate court reversed a decision by the state's Workers' Compensation Compensation Board that had found an injured, undocumented construction worker had failed to establish, through a diligent, relevant search for employment, that he maintained the required connection to the labor market [Matter of Policarpio v. Rally Restoration Corp., 2020 N.Y. App. Div. LEXIS 7635 (Dec. 10, 2020). The majority held substantial evidence did not support the Board's ruling, since the uncontradicted evidence indicated the undocumented worker, who had a long history of working constructions jobs in the U.S. in spite of his undocumented status, had applied for 62 separate positions in New York City following his injury. True, said the majority, those positions had not been in the construction industry–his back injury prevented him from doing any heavy lifting–but his efforts had been sufficient to show that he was looking for work.
Background
Claimant, an undocumented construction worker, sustained injuries to his back, neck, left ankle and left knee in a work-related injury in January 2017. As relevant here, claimant was awarded workers' compensation benefits at a TPD rate and, after the employer and its workers' compensation carrier raised the issue of labor market attachment. A WCLJ issued a decision finding that claimant had demonstrated a timely, diligent and persistent effort to find a job and awarded him benefits at the partial disability rate for the period of July 31, 2018 to January 11, 2019, and continuing thereafter. The Board found otherwise, holding that claimant had failed to produce sufficient evidence at the hearing to establish that his job search was timely, diligent and persistent so as to demonstrate a reattachment to the labor market. The Board rescinded the continuing benefits. Claimant's application for reconsideration and/or full Board review was subsequently denied. Claimant appealed.
Appellate Court: Undocumented Status Does not Prohibit Award
Justice Egan, writing for the majority of the appellate court, noted that the sole issue on appeal was whether substantial evidence supported the Board's determination that claimant failed to demonstrate labor market attachment after July 31, 2018. Citing earlier authority, the justice added, however, that claimant's status as an undocumented alien did not, in and of itself, prohibit an award of workers' compensation benefits. Likewise, such an undocumented status did not eliminate the claimant's need to make a reasonable search for work. The justice also noted that the determination of whether a claimant had undertaken a reasonable search for work consistent with physical restrictions was a factual one that the appellate court must uphold as long as there was substantial evidence to support it.
Claimant's Efforts to Find Work
According to Justice Egan, the evidence at the hearing established that claimant attended school through the ninth grade in his country of birth and had exclusively worked in construction, both before coming to the United States at age 23 and for the eight years thereafter, until sustaining the subject injuries while performing heavy lifting at the employer's construction site. Claimant could neither read or write English. With respect to his attachment to the labor market, claimant submitted completed forms listing 62 businesses to which he applied for work between April and December 2018 as a prep cook, dishwasher, restaurant helper and ironing worker.
Claimant testified that he identified potential employers by walking around two boroughs of New York City two or three days per week, seeking work that would not require a Social Security number, which he lacked due to his undocumented status. He applied for both non-construction jobs, for which he lacked experience and language skills, and construction jobs, for which he had limited physical abilities due to his injuries. Potential employers informed claimant that (1) they were not hiring, (2) he lacked the requisite experience or (3) they could not hire him without a Social Security number. Claimant also produced documentation establishing that he sought assistance from Workforce1, a job location service, which aided him in the preparation of a work-history resume in English. Claimant testified that Workforce1 ultimately advised him that he was unable to use its services for his job search because he lacked a Social Security number. Claimant registered at an adult learning center in order to take English language courses, but was placed on a wait list and, as of the time of the hearing, had yet to be contacted regarding an opening.
Claimant's Physical Status
According to Justice Egan, claimant's uncontradicted testimony demonstrated that, throughout the duration of his job search, the injuries to his back caused him "a lot of pain," which he described as "severe" and "almost constant." His treating physicians advised him that he could not bend or "lift anything heavy," that he should continue with therapy to see if the pain subsided and that he should not work because his condition was "very serious." Ultimately, given that claimant's only job experience was in construction and his inability to perform heavy lifting, coupled with having limited English-speaking skills and an inability to read and write in English, he did not receive any job offers during the relevant time period.
Board's Decision Not Supported
The majority opinion indicated that the Board's reliance on the fact that just over one third of the businesses to which claimant applied had no known publicized openings, or that he applied for positions that did not comport with his physical limitations, did not support its finding that his job search effort lacked good faith. To the contrary, stressed Justice Egan, it was clear that claimant's circumstances effectively required that he conduct an in-person, independent job search in an attempt to identify those businesses, just like the employer, that would hire him despite his lack of documentation and with his physical limitations [emphasis added]. Additionally, indicated the majority opinion, the Board's finding that claimant should have responded to actual job openings rather than approaching businesses in person as cold contacts relied on the unsupported supposition that he had access to or could otherwise read available job postings or that such postings would reflect whether a Social Security number was a prerequisite for hiring. Justice Egan indicated there was nothing in the record demonstrating that claimant had access to job training or that there was an agency willing and able to assist with his job search or that he had access to a computer, let alone the computer skills necessary, to conduct a job search.
The majority also stressed that the Board, like the WCLJ, credited claimant's testimony that he had applied, in person, for 62 positions over a nine-month period. The majority opinion pointed out that the Board made no finding that claimant failed to avail himself of retraining, rehabilitation and/or job-location programs or services that were available to him as an undocumented, injured worker. Accordingly, the majority found that the Board's conclusion that claimant failed to submit evidence of a timely, diligent and persistent job search so as to demonstrate attachment to the labor market was not supported by substantial evidence. Justice Aarons and Colangelo concurred with Justice Egan's opinion.
Dissent
Justice Mulvey, joined by Justice Pritzker, dissented. Justice Mulvey initially observed that claimant bore the burden of demonstrating his attachment to the labor market through evidence of a diligent and persistent search for employment within medical restrictions. The justice argued the majority had not held claimant to his burden. Justice Mulvey indicated that instead of showing an adequate and diligent job search, claimant had essentially placed blame on Workforce1, and the Board itself, for not offering more services to undocumented workers.
Further, noted the justice, if claimant did not have access to a computer or job search websites, he could have provided such testimony. Nevertheless, claimant did not present any evidence that he lacked access to a computer. Indeed, noted the justice, many public libraries offered free computer and Internet access. As for the majority's conclusion that claimant was forced to go door to door looking for work, Justice Mulvey said the record did not demonstrate that claimant lacked access to a friend or relative who could assist him by reading English-language classified advertisements in newspapers or online or help-wanted signs in store windows, or that there were no available Spanish-language advertisements or websites for jobs in New York City, a location with a large Spanish-speaking population. Walking around a portion of New York City, seeking jobs where none were actually advertised, did not constitute an adequate, diligent search, concluded Justice Mulvey.
Commentary
This case illustrates the brokenness of our current system. On the one hand, there are many employers, like the one who employed the claimant at the time of his injury–particularly in the construction industry–who are completely willing to look past the undocumented status of a worker, as long as he or she is able-bodied and willing to work. Anecdotally, many point out that when injured, the chances that an undocumented worker will file a claim is much lower than if he or she was a naturalized citizen or holding a valid green card. Those same employers then desire to hold up the worker's undocumented status as a shield to loss of earnings claims when the worker, who has no valid social security number, tries to get work within his or her medical limitations.
Heads it Wins, Tails the Worker Loses
Had the Board's decision stood, the employer here would have successfully gamed the system. It would have had the services of a capable worker up to the time of his injury and then, after the injury, it would been able to take advantage of the worker's undocumented status and his inability to seek other employment, to reduce its long-term disability liability. It is only when employers come to understand that they take the worker's undocumented status along with the worker's skills that some form of equilibrium can be established. When the employer recognizes that, in hiring the undocumented worker, it also takes on the significant risk that, following an injury, it will bear the burden of the worker's inability to gain further employment that the situation will improve.