By Ted Carpenter, Esq.
One of the more heady experiences I ever had was arguing a case before the Pennsylvania Supreme Court. It was something I will never forget, although the result was not the one I had hoped for or expected. But, I am a lawyer, so I picked myself up off the ground and tried to think about the decision’s implications, and more particularly about how to deal with its aftermath.
The Court’s decision was in the Cruz case , (David Cruz v. WCAB (Kennett Square Specialties and PMA Management Corporation)), which involved the troubling issue of how to prove that an injured worker was undocumented when he wouldn’t answer any questions as to his documented status. The Court held that the burden of proving the undocumented status was on the employer, and that the failure to answer the question was not sufficient to meet this burden of proof. This leaves employers with a dilemma as to how to go about producing evidence before the WCJ to satisfy this burden. To address this, I recommend that your insureds and/or self-insureds use E-Verify to document an individual being hired. It automatically determines employment eligibility and keeps a work force legal. In this way the claimant's status is automatically resolved and will not become an issue before the WCJ. However, in those situations where the employer does not have E-Verify, there are still things that can be done:
1. Initially, always make sure there is evidence the claimant is capable of working in some capacity. (This is necessary so that the issue will be relevant to the WCJ and evidence on the documented status can be presented);
2. Wherever possible, obtain and submit a copy of the an I-9 or other documentation that the employee has provided to his employer to be allowed to work. This should include the documentation that accompanies the I-9 form. (Generally, this consists of a copy of a drivers license, a green card and, at times, a work visa.) Realize, however, that there may be times when the employer has not obtained proper documentation on the individual’s status. YOU must consider whether you can even raise the issue under these circumstances due to the potential criminal problems it might create for the employer;
3. If a claims index has been run on the claimant, often it will show if anyone else is using that social security number. If this is the case, introduce a copy of the claims index, along with the I-9 and other documents. Confront the claimant with the information and make sure it is the claimant, and not the attorney, that asserts the 5th Amendment privilege when answering questions;
4. Consider offering testimony from a representative of the United States Citizens and Immigration Services. (This may prove difficult, but once you have identified the proper individual, his or her testimony should be taken and offered. In this way there is no question that substantial evidence has been offered on the issue);
5. Interview the claimant’s co-workers. Determine if he/she has admitted to any of them that he/she is undocumented;
6. Be sure to review the documentation that is obtained from the employer regarding the claimant. Many times an individual will obtain a limited work visa which will expire, and therefore someone who was documented may become undocumented.
The Cruz case does not resolve the issue of undocumented workers and their entitlement to benefits. It is still the law in Pennsylvania that where an undocumented claimant is capable of working in any capacity, the employer will be entitled to a suspension of benefits. However, it makes it more difficult to address the issue in those circumstances where the claimant fails to answer the question about his status, or produce evidence establishing that he or she is in fact documented. It will require the employer to affirmatively prove the status of the claimant. Hopefully these suggestions will provide some assistance.