Termination of Undocumented Workers Under the Workers' Compensation Act - March 2008 - Workers' Compensation Law

• Jurisdiction: Colorado,United States
• Citation: Vol. 37 No. 3 Pg. 59
• Pages: 59
• Publication year: 2008

37 Colo.Law. 59 Colorado Lawyer 2008.

2008, March, Pg. 59. Termination of Undocumented Workers Under the Workers' Compensation Act - March 2008 - Workers' Compensation Law

The Colorado Lawyer
March 2008
Vol. 37, No. 3 [Page 59]

Articles
Workers' Compensation Law
Termination of Undocumented Workers Under the Workers' Compensation Act
by Craig Eley

Workers' Compensation articles provide information about topics of interest to workers' compensation practitioners and updates on Colorado case law.

Article Editors

Thomas L. Kanan, Jr., Denver, of McElroy, Deutsch Mulvaney & Carpenter, LLP - (303) 293-8800 tkanan@mdmlawco.com; Ralph Ogden, Denver, of Wilcox &amp Ogden - (303) 399-5005, irishcorky@aol.com

About the Author

Craig Eley is a Prehearing Administrative Law Judge, Colorado Division of Workers' Compensation -craig.eley@state.co.us.

When a worker who has been injured on the job is terminated, ostensibly because the worker is an undocumented alien, that worker is disqualified from receiving temporary wage loss benefits. The discovery battle that may take place to determine the actual reason for termination could have undesirable consequences for the employer.

In the workers' compensation system, when an injured worker (the claimant) has been terminated from employment as a result of an act or omission for which the worker was responsible, the claimant becomes disqualified from receiving temporary disability benefits (payments for time lost from work while recovering from the disability). This generally is referred to as "responsibility for termination." This article discusses discovery issues involved in claims where an employee is injured on the job, and then is terminated from employment, ostensibly on the ground that the employee is not legally entitled to undertake or maintain employment in the United States.

The Termination Statutes

Two sections of the Colorado Workers' Compensation Act contain identical language providing that in cases "where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury."(fn1) These provisions commonly are referred to as the termination statutes.

The Industrial Claim Appeals Panel (Panel) (the first level of appeal in workers' compensation cases) repeatedly has ruled that in examining whether the termination statutes apply to a claimant's termination from employment, the issue is whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination.(fn2) For example, suppose a worker has been injured and the employer gave that worker modified employment to perform. The worker later is terminated for being late for work. The worker was late because the vehicle the worker uses to travel to work had a flat tire, which was discovered when the worker attempted to drive to work that day. It is likely that an administrative law judge (ALJ) would conclude that the worker did not act volitionally or exercise control over the circumstances of the termination. Although the termination would be effective (workers' compensation ALJs have no jurisdiction to order the rehiring of injured workers), the termination statutes could not be used to deprive the claimant of temporary total disability benefits while recovering from the injury.

If, on the other hand, the employee knew the tire was flat the evening before work but neglected to repair it until the next morning, an ALJ could find that the delay in arriving at work was the responsibility or fault of the employee. Thus, the employee would, by the terms of the termination statutes, be disqualified from receiving temporary total disability benefits for work time lost while recovering from the injury.

The Controversy

It is not surprising that there has been much...