In Gonzalez v. Performance Painting, Inc. et al., 2011-NMCA-025, cert. granted, the New Mexico Court of Appeals recently considered (and rejected) the applicability of workers' compensation "modifier" benefit provisions to undocumented immigrant workers .
The Workers' Comp Act, NMSA 52-1-1 to -70, permits basic disability rates (in this case a permanent disability of 3%) to be modified by the applicant's age, education and physical capacity, and the worker argued he was entitled to 48% modifier points). Id., 52-1-26(C). However, a worker loses his or her right to modifier benefits if he or she unreasonably refuses to accept a work offer of the same or greater wages.
Upon review of the statute and Legislative intent, the Court concluded modifier benefits were not intended to apply to worker, who was not eligible for rehire due to his undocumented status. In so ruling, the Court rejected the worker's arguments that the employer failed to verify worker's employment status, as required under the law, and should have been found to know or should know of worker's undocumented status.
The Court noted that the Immigration Reform and Control Act (IRCA) did not preempt workers compensation or other employment laws and, as worker argued, there are valid policy reasons why it should not. Specifically, if it did, employers would have a positive incentive to hire such unprotected and "cheap" illegal immigrant workers. However, since employer was legally prohibited from offering reemployment to worker if his status was known, the Court could not conclude that Legislature intended such workers to obtain modifier benefits. Presumably, the Court also rejected the factual argument that the employer knew or should have known the worker was undocumented, although that point is not made clear in the opinion.
Finally, the Court rejected worker's argument that such an interpretation would violate the equal protection clause. The case cited by worker, Breen v. Carlsbad Munic. Schools, 2005-NMSC-028, concerned a disabled employee, while undocumented workers do not fall into a "similar class" of other employees and also are not members of a "suspect class."
For these reasons, the Workers' Comp Judge's denial of modifier benefits was affirmed.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, in labor/employment or other areas of the law, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
