An emerging issue in the United States is the influx of undocumented citizens which are entering the country and, in turn, entering the workforce. Although not formally recognized as legal citizens, undocumented citizens are afforded various benefits for simply being within the United States border.
One of the benefits provided is the ability to receive workers' compensation benefits under the Pennsylvania Workers' Compensation Act (Act) in the event such worker is injured on the job. Pennsylvania Supreme Court precedent has confirmed that for public policy reasons, all workers are entitled to protection under the Act, notwithstanding the worker's immigration status. (Reinforced Earth v. WCAB (Astudillo), 810 A. 2d 99. Pa.2002). The case law on this issue has evolved and employers can obtain a suspension of an undocumented employee's indemnity benefits without having to show work is available, so long as that employee is released to return to some level of work. The basis behind this suspension is that the undocumented employee is not eligible to be rehired pursuant to immigration law.
A case decided July 2014 by the Pennsylvania Supreme Court, Cruz v. WCAB (Kenneth Square Specialties), 2014 Pa. LEXIS 1772, addresses and clarifies the respective burdens of proof of employees and employers in claims involving undocumented workers. In Cruz, the employee injured his back while loading barrels onto a truck. The employee timely reported his injury, received medical treatment and was diagnosed with a herniated disc. Initially, the employee received temporary compensation under a Notice of Temporary Compensation Payable, which was subsequently revoked via employer's issuance of a Notice of Denial and Notice Stopping Temporary Compensation. Thereafter, a claim petition was filed. During the litigation, the employee was cross examined concerning his immigration status, to which he refused to answer, invoking his 5th amendment right not to incriminate himself.
The employer did not provide any evidence with respect to the employee's legal authorization to work in the United States. The judge accepted that the employee sustained a work-related injury which rendered him partially disabled, although the judge suspended the employee's benefits finding that the employer met its burden of proof that the employee was not a citizen and not authorized to work in the United States. On appeal, which made its way to the Pennsylvania Supreme Court, the Court ultimately decided in a claim petition setting, the employee is only required to establish a work related injury and its causal effect on earning capacity. The Court rejected the employer's assertion that the employee's burden also involves his proof of employment eligibility under federal immigration law. Likewise, the Court confirmed that it is the employer's burden to establish evidence to support a suspension of benefits, holding that a employee's invocation of his 5th amendment right against self-incrimination, absent additional independent corroborating evidence, does not constitute substantial evidence of an employee's lack of legal authorization to be employed which would allow for a suspension of benefits.
As a result of Cruz, employers attempting to seek a suspension of an employee's benefits based on alleged undocumented citizen status need to take a proactive approach in order to sustain its burden of proof. In the event an employee invokes his or her 5th amendment right against self-incrimination, the employer needs to further investigate the employee's citizenship status and present evidence to corroborate its position, whether that be via submission of documentation, such as an I-9 form and/or supporting documentation, or the presentation of rebuttal testimony on the issue.
By: Ross Ventre