Immigration Status and Worker’s Compensation

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On November 29, 2016, the Delaware Supreme Court issued an opinion which stated that a worker’s immigration status is a factor which must be considered in determining whether a worker meets the legal definition of “displaced worker”: The legal definition of “displaced worker” is as follows:  “The term is used to refer to a worker who, while not completely incapacitated for work, is so handicapped by a compensable injury that [she] will no longer be employed in any well-known branch of the competitive labor market and will require a specially-created job if [she] is to be steadily employed.” Ham v. Chrysler Corp., A.2d 258, 261 (Del. 1967)

In the event that the worker meets the legal definition, there may be no way to terminate worker’s compensation benefits.   In the case in question, Roos Foods v. Magdalena Guardado, Ms. Guardado was out on worker’s compensation benefits under the “total disability category” following a workplace injury.  She also happened to be an undocumented worker.  Upon determining that Ms. Guardado was healthy enough to return to work, the employer sought to terminate her benefits.  The Industrial Accident Board determined that Ms. Guardado was prima facie a displaced worker based on her immigration status – i.e. she cannot legally be employed in the United States.  This finding was affirmed by Superior Court.  
Upon review the Delaware Supreme Court found that immigration status alone is not sufficient to meet the definition; however, it is a factor which must be considered in reaching the determination.  


The ruling stands to benefit undocumented workers who wish to avoid having their worker’s compensation benefits terminated.  Labor attorneys have opined that this ruling could lead to instances where it is legally impossible to terminate the employee’s benefits, even after recovery from their injury.

This ruling has the potential to make undocumented worker’s uninsurable under worker’s compensation coverage.   In their arguments, the employer argued that they could not meet their burden of proof that the employee could return to work because doing so would involve furnishing affidavits from employers (themselves included presumably) which attest to their willingness to violate federal immigration law.  The court disagreed:

“Although we understand this fear, we do not believe it is warranted.  The uncomfortable reality that gives rise to societal debate is that there are large number of undocumented workers in our midst.  Using reliable social sciences methods, there should be no barrier to employers in presenting evidence regarding the prevalence of undocumented workers in certain types of jobs in certain regions, and combining that with more specific information about actual jobs in those categories, so long as the evidence meets the useful tests of reliability and relevancy, the Board has to give it weight in making the ultimate determination whether an injured worker has employment available to her.”

Legislation which would clarify the issue, under the Delaware worker’s compensation statute, would provide protection for employers and carriers alike and prevent undue disruption in our labor market and the market for worker’s compensation insurance.  

The Chamber supports legislation which would clarify that the burden of proof borne by employers in instances where they seek to terminate the worker’s compensation benefits of an undocumented worker.