Return to Work Strategies for Undocumented Immigrants Under Martines v. Worley & Sons Construction
By: Andy Jarrett
One of the most effective ways to take control of a claim and lower potential exposure is by offering the claimant suitable light-duty employment with the employer or a third-party return-to-work vendor. This is especially true when encountering claims made by undocumented immigrants. Under the holding established in Martines v. Worley & Sons Construction, 278 Ga. App. 26 (2006), under certain circumstances, an employee’s failure to return to work in a suitable modified duty capacity may constitute an unjustified refusal of suitable employment for the purposes of suspending income benefits under O.C.G.A. § 34-9-240.
In Martines, the claimant suffered a compensable injury to his left foot. Following medical treatment for his injury, the authorized treating physician released him to work with light-duty restrictions. Thereafter, the employer compiled with the rules under O.C.G.A. § 34-9-240 and offered a delivery driver position to the claimant that was suitable to his work status. The claimant accepted the position and returned to work, but before beginning the position, the employer asked him for a driver’s license as well as proof he was in the country legally. The claimant was unable to provide this documentation, so he left work and did not return. The employer thereafter suspended his income benefits based on his unjustified refusal of the suitable employment.
At the trial division, the administrative law judge (ALJ) found that the income benefits suspension was improper because the offered position was not suitable to the claimant because he did not possess a driver’s license. The Appellate Division of the State Board affirmed the judgment of the ALJ. The Superior Court reversed the ALJ and the Appellate Division, and the case was sent to the Georgia Court of Appeals. In its opinion, the court of appeals used the two-pronged test issued by the Georgia Supreme Court in City of Adel v. Wise, 261 Ga. 53 (1991), to determine if the offered job was suitable to the claimant’s capacity and if the claimant’s refusal of the work was justified. In deciding the first prong, the court of appeals stated “capacity” referred to the claimant’s physical ability to perform the work, which he was clearly able to physically perform the offered delivery driver position. As to the second prong, for a refusal to be justified, it must relate to the ability or skill to perform the job or factors such as geographic location or travel conditions which would disrupt the employee’s life. The court of appeals determined the inability for the claimant to obtain a driver’s license because of his undocumented status did not present an issue of physical ability or skill to perform the job, such that his refusal of the position was not justified.
The claimant argued the employer should be unable to use his undocumented status against him because they had failed to verify his eligibility status via the I-9 form provided by Immigration and Naturalization Services. The court of appeals pointed out the claimant had provided a Social Security number, which belonged to someone else, when he originally applied for the position. The claimant therefore could not benefit from the employer’s failure to verify his status when he had provided them with a fraudulent Social Security number.
However, while the claimant’s equity argument was rejected by the court of appeals, their opinion leaves open the possibility that equity could be used in the situation where the employer did not require the prospective employee to provide a Social Security number prior to beginning work. In that situation, a court could determine the employer took no steps to ensure that it was complying with the law so it could reach a different conclusion than in Martines.
Therefore, to avoid these issues, it is recommended employers take the normal pre-claim steps of requiring their prospective employees to provide their Social Security numbers and verifying their immigration status prior to beginning work. This provides an element of protection should it later be determined the claimant provided fraudulent information in order to secure employment. Once a claim is filed and a claimant’s information is determined to be fraudulent, the employer must still take the necessary steps to comply with O.C.G.A. § 34-9-240. This also means ensuring the job being offered to the employee cannot be refused for other justifiable reasons, such as the position being beyond the physical capability or skill of the claimant (i.e. offering a job that requires typing to an employee with no computer experience) or a position that requires relocation.
Attorney Contact Info
Andy Jarrett
andy.jarrett@swiftcurrie.com
404.888.6190