About Illigal Immigration

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					                    Author:      ILLEGAL IMMIGRATION & WORKER’S COMPENSATION
          Phone: 229-436-4665
                                 	     Immigration	has	been	a	hot	button	issue	in	both	the	federal	and	state	political	arenas	over	the	last	
                                 year.	In	the	Fall	of	2006,	Congress	passed	a	bill	authorizing	and	partially	funding	the	possible	construction	
                                 of	a	700	mile	fence	along	the	Mexican	border.	On	the	state	level,	Georgia	Governor	Sonny	Perdue	signed	
      Byron K. Lindberg, Esq.
                                 the	Georgia	Security	and	Immigration	Compliance	Act	in	April	2006,	which	requires	residents	seeking	
          Phone: 615-313-9911
                                 state	or	federal	social	welfare	benefits	to	prove	their	legal	status,	and	which	prohibits	employers	from	
     Email:   deducting	as	a	business	expense	$600.00	or	more	in	wages	paid	to	any	undocumented	worker.	Of	course,	
                                 immigration	has	also	become	a	hot	topic	in	the	workers’	compensation	arena,	particularly	since	the	
                                 United	States	Supreme	Court	issued	its	decision	in	Hoffman	Plastic	Compounds,	Inc.	v.	National	Labor	
                                 Relations	Board	in	2002.	In	Georgia	alone,	the	Court	of	Appeals	has	heard	four	cases	involving	an	
                                 undocumented	worker’s	right	to	recover	workers’	compensation	benefits	since	2004.	While	the	Georgia	
                                 courts	have	struggled	to	find	a	proper	balance	between	the	benevolent	objectives	of	the	Workers’	
                                 Compensation	Act	and	Federal	Immigration	Policy,	other	states,	such	as	Tennessee,	have	taken	a	far	more	
                                 expansive	stance.


                                 	     Prior	to	the	United	States	Supreme	Court’s	Hoffman	decision	in	2002,	only	one	case	had	been	
                                 decided	by	the	Court	of	Appeals	pertaining	to	illegal	immigrants	and	workers’	compensation	benefits.	In	
                                 Dynasty	Sample	Co.	v.	Beltran,	224	Ga.	App.	90	(1996),	the	Court	held	that	an	illegal	alien	could	not	be	
                                 denied	workers’	compensation	benefits	solely	on	the	basis	of	his	intentionally	misrepresenting	his	
                                 residency	status.	Beltran	was	injured	while	employed	by	Dynasty	Sample	Company	and	sought	workers’	
                                 compensation	benefits,	which	were	initially	paid.	However,	Dynasty	terminated	Beltran’s	employment	and	
                                 denied	his	claim	for	weekly	indemnity	benefits	upon	learning	that	Beltran	had	intentionally	misrepre-
                                 sented	the	fact	that	he	was	an	illegal	alien	by	presenting	false	documents	at	the	time	he	applied	for	
                                 employment.	Although	Dynasty	admitted	that	it	could	not	deny	benefits	solely	based	on	Beltran’s	status	as	
                                 an	illegal	alien,	it	argued	that	it	was	entitled	to	deny	benefits	because	the	employment	contract	with	
                                 Beltran	was	void	or	voidable	based	on	his	misrepresentations.

                                 	     The	administrative	law	judge	initially	found	that	Beltran	was	entitled	to	weekly	indemnity	benefits	as	
                                 of	his	date	of	injury	on	equal	protection	grounds;	however,	the	ALJ	denied	Beltran	any	income	benefits	
                                 after	the	date	of	his	termination,	finding	that	his	status	as	an	illegal	alien	was	not	a	justifiable	reason	for	his	
                                 failing	to	return	to	otherwise	available	or	suitable	employment.	The	Appellate	Division	adopted	the	ALJ’s	
                                 findings	and	award,	but	the	superior	court	reversed,	based	on	Georgia	Electric	Co.	v.	Rycroft,	259	Ga.	155	
                                 (1989),	in	which	the	Georgia	Supreme	Court	adopted	a	three-part	test	for	determining	when	fraud	in	the	
                                 inducement	of	the	employment	contract	is	sufficient	to	bar	an	employee’s	claim	for	benefits.

                                 	    Although	Rycroft	dealt	specifically	with	misrepresentations	regarding	an	employee’s	preexisting	
                                 physical	condition,	the	Court	of	Appeals	held	that	the	Rycroft	test	was	equally	applicable	to	all	cases	
                                 involving	fraud	in	the	inducement	of	an	employment	contract.	Nevertheless,	it	was	held	that	the	
                                 employment	contract	cannot	be	considered	void	or	voidable	unless	the	employer	can	demonstrate:	(1)	that	
                                 the	employee	knowingly	and	willfully	made	a	false	representation	at	the	time	the	employee	applied	for	
                                 work;	(2)	that	said	false	representation	was	relied	on	by	the	employer	and	was	a	substantial	factor	in	its	
                                 hiring	decision;	and	(3)	that	there	was	a	causal	connection	between	the	false	representation	and	the	injury	
                                 for	which	the	employee	seeks	benefits.	The	Court	of	Appeals	affirmed	the	superior	court,	finding	that	
                                 Dynasty	had	failed	to	meet	the	third	prong	of	the	test	—	showing	a	causal	connection	between	Beltran’s	
1180 West Peachtree Street NW    misrepresentation	as	to	his	citizenship	and	the	injury	that	he	suffered.	In	fact,	the	Court	noted	that	it	
         Atlantic Center Plaza   would	be	all	but	impossible	to	meet	that	requirement.	It	is	interesting	to	note	that	the	ALJ’s	finding	that	
                     Suite 900   Beltran’s	status	as	an	illegal	alien	was	not	a	justifiable	reason	for	his	failing	to	return	to	otherwise	available	
        Atlanta, Georgia 30309   and	suitable	employment	was	not	addressed	by	the	Court	of	Appeals	until	10	years	later	in	Martines	v.	
                                 Worley	&	Sons	Constr.,	which	is	discussed	below.
          Phone: 404-954-5000
            Fax: 404-954-5020
                                 	    Beltran	seemed	to	settle	the	illegal	alien	issue,	at	least	until	the	United	States	Supreme	Court	decided	
Hoffman	Plastic	Compounds,	Inc.	v.	National	Labor	Relations	Board,	535	US	137	(2002).	In	that	case,	the	
Supreme	Court	held	that	the	National	Labor	Relations	Board	could	not	award	back	pay	benefits	to	an	
illegal	alien	who	had	never	been	authorized	to	work	in	this	country,	reasoning	that	the	award	of	back	pay	
to	an	illegal	alien	would	run	counter	to	the	policies	underlying	the	Immigration	Reform	and	Control	
Act,	which	prohibits	the	employment	of	illegal	aliens	in	the	United	States.

	    Two	years	later,	in	Wet	Walls,	Inc.	v.	Ledezma,	266	Ga.	App.	685	(2004),	the	Georgia	Court	of	Appeals	
addressed	the	interplay	between	the	Georgia	Workers’	Compensation	Act	and	the	Immigration	Reform	
and	Control	Act	(IRCA)	in	light	of	the	Hoffman	decision.	Ledezma	fractured	his	back	and	became	
partially	paralyzed	in	1989.	The	employer	began	paying	him	TTD	benefits,	but	when	Ledezma	was	
subsequently	incarcerated	and	deported	from	the	United	States,	the	employer	suspended	benefits.	
Notwithstanding	his	deportation,	Ledezma	filed	a	claim	for	resumption	of	his	TTD	benefits.	The	employer	
argued	that	requiring	it	to	pay	income	benefits	contravened	the	doctrine	set	forth	in	Hoffman,	thereby	
suggesting	that	the	IRCA	preempted	the	Georgia	Workers’	Compensation	Act.

	     Citing	decisions	from	other	states,	the	Court	of	Appeals	held	that	there	was	no	conflict	between	the	
IRCA	and	the	Georgia	Workers’	Compensation	Act	as	would	prohibit	an	illegal	alien	from	receiving	
benefits.	The	employer	also	argued	that	it	should	be	able	to	suspend	benefits	because,	under	the	IRCA,	it	
was	incapable	of	offering	Ledezma	light	duty	employment	because	of	his	citizenship	status.	The	Court	of	
Appeals	again	dodged	this	issue	by	finding	that	Ledezma	was	totally	disabled	and	that	the	employer’s	
ability	to	offer	light	duty	was	not	relevant.

	    Less	than	six	months	later,	the	Court	of	Appeals	revisited	the	illegal	alien	issue	in	Continental	Pet	
Technologies,	Inc.	v.	Palacias,	269	Ga.	App.	561	(2004).	Palacias	had	been	in	the	United	States	illegally	for	
a	number	of	years	and	had	originally	used	fraudulent	documents	to	secure	her	position	with	the	employer.	
When	she	was	injured	on	the	job,	the	employer	denied	her	claim	for	workers’	compensation	benefits.	
Following	a	hearing,	an	ALJ	determined	that	Palacias	was	injured	in	the	course	of	her	employment,	and	
the	ALJ	directed	the	employer	to	pay	workers’	compensation	benefits.

	     On	appeal,	the	employer	argued	that	because	federal	law	made	it	unlawful	to	employ	an	illegal	alien,	
any	contract	of	employment	between	it	and	Palacias	was	void,	and	Palacias	was	never	an	“employee”	for	
workers’	compensation	purposes.	In	rejecting	that	argument,	the	Court	of	Appeals	again	analyzed	the	
interplay	between	the	IRCA	and	the	Georgia	Workers’	Compensation	Act.	Ultimately,	the	Court	
reaffirmed	its	holding	in	Ledezma,	finding	that	federal	immigration	law	did	not	preempt	Georgia	law	on	
the	question	of	whether	or	not	an	illegal	alien	may	receive	workers’	compensation	benefits.	In	reaching	
that	conclusion,	the	Court	noted	that	“inasmuch	as	the	goal	of	the	IRCA	is	to	reduce	the	incentives	for	
employers	to	hire	illegal	aliens,	that	goal	would	be	subverted	by	allowing	employers	to	avoid	workers’	
compensation	liability	for	work	related	injuries	to	those	employees	since	such	would	provide	employers	
with	a	financial	incentive	to	hire	illegal	aliens.”	The	Court	of	Appeals	went	on	to	hold	that	the	Georgia	
Workers’	Compensation	Act’s	definition	of	an	employee	—	“every	person	in	the	service	of	another	under	
any	contract	of	hire	or	apprenticeship”	—	would	necessarily	include	illegal	aliens.	The	Court	then	rejected	
the	employer’s	argument	that	the	fraud	perpetrated	by	Palacias	in	using	false	papers	to	obtain	her	
employment	prevented	her	from	recovering	workers’	compensation	benefits	based	on	its	previous	holding	
in	Beltran.

	    Less	than	a	month	after	issuing	its	decision	in	Palacias,	the	Court	decided	Earth	First	Grading	v.	
Gutierrez	270	Ga.	App.	328	(2004).	Gutierrez	was	in	the	United	States	illegally,	and	he	had	presented	
fraudulent	documents	to	Earth	First	when	he	was	hired	in	2000.	A	year	later,	Gutierrez	injured	his	back	
on	the	job.	The	claim	was	accepted	as	compensable,	and	TTD	benefits	were	commenced.	Shortly	
thereafter,	the	Employer	suspended	benefits	based	on	a	full	duty	release	from	Gutierrez’s	treating	physician.	
Gutierrez	later	requested	a	hearing,	seeking	reinstatement	of	TTD	and,	claiming	that	he	was	still	disabled.	
During	discovery,	the	employer	learned	of	Gutierrez’s	illegal	immigration	status.	The	employer	contended	
that	Gutierrez’s	undocumented	status	rendered	him	ineligible	to	receive	TTD	benefits	based	on	a	number	
of	arguments,	each	of	which	was	rejected	by	the	Court	of	Appeals.
	    Citing	Ledezma	and	Palacias,	the	Court	of	Appeals	rejected	the	employer’s	argument	that	federal	
immigration	law	preempted	the	Georgia	Workers’	Compensation	Act,	again	noting	that	a	contrary	holding	
would	reward	employers	for	hiring	illegal	aliens.	Likewise,	the	Court	rejected	the	employer’s	argument	
that	an	undocumented	worker	could	not	meet	the	definition	of	an	“employee”	under	the	Georgia	
Workers’	Compensation	Act.	Moreover,	finding	no	causal	connection	between	Gutierrez’s	presentment	of	
fraudulent	documents	and	his	work	related	injury,	the	court	rejected	the	employer’s	contention	that	
Gutierrez’s	claim	was	barred	by	O.C.G.A.	§	34-9-17(a),	which	bars	compensation	for	injuries	due	to	an	
employee’s	willful	misconduct.	Finally,	the	court	rejected	the	employer’s	most	compelling	argument	–	that	
an	undocumented	worker	is	analogous	to	an	incarcerated	person	in	that	neither	could	meaningfully	
accept	a	job	even	if	it	were	offered.	It	is	well	settled	in	Georgia	that	an	injured	employee’s	TTD	benefits	
may	be	suspended	upon	conviction	and	incarceration	because	any	offer	of	employment	that	may	have	
been	tendered	to	the	employee	would	be	ineffectual	since	the	employee	could	not	meaningfully	accept	
such	offer.	The	Court,	however,	found	that	Gutierrez’s	illegal	immigration	status	did	not	render	him	
unable	to	“meaningfully”	accept	employment	“during	the	period	at	issue	in	this	case.”	Although	Gutierrez	
was	an	illegal	alien	throughout	the	duration	of	his	employment	with	the	employer,	the	employer	did	not	
learn	of	Gutierrez’s	immigration	status	until	long	after	the	period	for	which	he	sought	TTD	benefits.	
Under	those	circumstances,	the	court	held	that	Gutierrez’s	illegal	immigration	status	did	not	render	him	
unable	to	meaningfully	accept	employment	“during	the	pertinent	period.”

	    For	nearly	a	decade,	the	Georgia	Court	of	Appeals	had	taken	an	employee-friendly	approach	to	the	
issue	over	immigration	status.	On	the	surface,	that	trend	held	true	with	Gutierrez.	However,	in	hindsight,	
the	Court’s	careful	tailoring	of	its	language	in	Gutierrez	—	using	phrases	such	as	“in	this	case,”	“under	
these	circumstances,”	and	“during	the	pertinent	period”	—	was	a	hint	that	the	Court	was	about	to	change	
	    In	2006,	the	Court	of	Appeals	finally	addressed	the	issue	raised	by	the	ALJ	ten	years	earlier	in	Beltran	
and	which	had	been	argued	and	skirted	around	in	nearly	every	case	thereafter	–	that	an	employee’s	status	
as	an	illegal	alien	is	not	a	justifiable	reason	for	failing	to	return	to	otherwise	available	and	suitable	
employment.	In	Martinez	v.	Worley	&	Sons	Construction,	278	Ga.	App.	26	(2006),	the	right	set	of	facts	
were	finally	before	the	Court.	Martines	had	suffered	a	work-related	injury	to	his	left	foot	and	was	released	
by	his	physician	to	return	to	work	with	restrictions.	The	employer	offered	him	a	position	as	a	delivery	
truck	driver,	a	job	falling	within	the	restrictions	set	by	his	physician.	Martines	agreed	to	accept	the	job,	
and	he	reported	to	work.	However,	before	allowing	Martines	to	drive	a	company	truck,	the	employer	
asked	him	to	show	a	driver’s	license	and	documentation	that	he	was	in	the	country	legally.	At	that	time,	
Martines	revealed	that	he	could	not	produce	a	Georgia	driver’s	license	and	that	he	could	not	obtain	one	
because	he	had	entered	the	United	States	illegally.

	     The	issue	before	the	Court	was	whether	the	job	offered	to	Martines	was	suitable	to	his	capacity	and	
whether	Martines’	refusal	of	the	work	was	justified.	In	holding	that	the	job	offered	was	suitable	and	that	
Martines’	refusal	was	not	justified,	the	Court	noted	that	an	employee’s	refusal	to	accept	employment	must	
relate,	in	some	manner,	to	his	physical	capacity	or	his	ability	to	perform	the	job.	Examples	of	such	include	
work	that	aggravates	an	employee’s	injury,	work	that	requires	relocation,	or	work	that	the	employee	lacks	
the	skills	to	perform.	An	employee	is	not,	however,	justified	in	refusing	work	due	to	personal	choices	
unrelated	to	his	work	such	as	his	desire	to	work	a	particular	shift	or	to	avoid	non-union	work.	Martines	had	
the	physical	ability	and	skill	to	operate	a	car,	but	it	was	his	inability	to	acquire	a	Georgia	driver’s	license	
because	of	his	illegal	status	that	kept	him	from	returning	to	work.	Martines	argued	that	equity	should	forbid	
the	employer	from	raising	his	illegal	residency	status	because	the	employer	failed	to	verify	his	status	at	the	
time	he	was	hired.	The	court	rejected	that	argument,	noting	that	“one	who	would	have	equity	must	do	
equity,”	and	when	Martines	completed	his	employment	application,	he	provided	the	employer	with	a	Social	
Security	number	that	belonged	to	someone	else.
	     Evident	in	the	ten	year	progression	from	Beltran	to	Martines	is	the	Court’s	struggle	to	balance	two	
compelling	policy	interests.	The	Court	has	clearly	recognized	that	an	employee’s	illegal	immigration	status	
alone	does	not	bar	him	from	receiving	workers’	compensation	benefits,	as	to	hold	otherwise	would	
provide	a	financial	incentive	for	employers	to	hire	illegal	aliens	in	contravention	of	federal	immigration	
law.	On	the	other	hand,	declaring	illegal	immigration	status	to	be		
a	basis	for	justified	refusal	of	employment	would	allow	an	employee	already	receiving	benefits	to	refuse	
any	proffered	employment	solely	based	on	his	legal	inability	to	perform		
the	work.


	    The	Tennessee	Workers’	Compensation	Act	has	a	much	broader	definition	of	an	“employee.”	
Specifically,	Tenn.	Code	Ann.	§	50-6-102	(10)	(A)	defines	an	employee	as	every	person	in	the	service	of	an	
employer	“whether	lawfully	or	unlawfully	employed.”		The	Tennessee	General	Assembly,	however,	is	
considering	two	bills	that	would	specifically	exclude	aliens	from	receiving	any	workers’	compensation	
benefits.		One	of	those	bills,	House	Bill	73,	currently	before	the	Employee	Affairs	subcommittee	of	the	
House	Consumer	and	Employee	Affairs	Committee,	would	amend	Tenn.	Code	Ann.	§	50-6-106	to	
exclude	aliens	from	coverage	under	the	Workers’	Compensation	Law	unless	such	alien:	was	lawfully	
admitted	for	permanent	residence	at	the	time	such	services	were	performed;	was	lawfully	present	for	the	
purposes	of	performing	such	services;	or	was	permanently	residing	in	the	United	States	under	color	of	
law	at	the	time	services	were	performed.		The	amendment	also	would	require	any	decision	to	deny	
benefits	under	the	subdivision	to	be	based	on	a	preponderance	of	the	evidence.		Nonetheless,	as	the	state	
of	the	law	currently	stands,	there	is	little	doubt	that	undocumented	alien	workers	are	entitled	to	workers’	
compensation	benefits.

	    In	Silva	v.	Martin	Lumber	Co.,	203	Tenn.	LEXIS	1047	(2003),	the	Special	Workers’	Compensation	
Appeals	Panel	confirmed	that	illegal	aliens	are	not	excluded	from	coverage	in	the	Tennessee	Workers’	
Compensation	Act.	“It	is	well	settled	that	the	act	extends	benefits	to	employees	regardless	of	the	legality	of	
their	employment.”	The	employer	also	argued	that	Silva	should	be	barred	from	recovering	workers’	
compensation	benefits	because	he	produced	fraudulent	documents	concerning	his	eligibility	to	work	in	
the	United	States	at	the	time	he	was	hired.	The	court	rejected	that	argument,	holding	that	when	asserting	
the	defense	of	fraud	and	misrepresentation,	the	employer	must	prove	that	the	employee	knowingly	and	
willingly	made	a	false	representation	as	to	his	physical	condition,	that	the	employer’s	reliance	on	that	
representation	was	a	substantial	factor	in	the	hiring	of	the	employee,	and	that	there	was	a	causal	
connection	between	the	false	representation	and	the	injury.	Silva’s	misrepresentation	of	his	citizenship	
status	did	not	concern	his	physical	condition,	and	there	was	no	causal	connection	between	his	misrepre-
sentation	and	his	injury.	Accordingly,	the	employer	could	not	deny	benefits	on	that	basis.

	    Earlier	this	year,	in	Fusner	v.	Coop	Construction	Co.,	LLC,	211	S.W.	3d	686	(2007),	the	Supreme	
Court	of	Tennessee	held	that	non-resident	foreign	nationals	can	be	considered	dependents	and	receive	
death	benefits	under	the	Tennessee	Workers’	Compensation	Act.	In	fact,	the	Tennessee	General	Assembly	
has	specifically	provided	a	mechanism	by	which	alien	dependents	of	employees	may	gain	access	to	the	
Tennessee	Judicial	System	to	recover	workers’	compensation	death	benefits	through	the	consulate.

	    An	issue	that	has	yet	to	be	resolved	by	the	Tennessee	appellate	courts	is	whether	the	statutory	cap	on	
permanent	disability	benefits	could	be	applied	to	limit	the	availability	of	such	benefits	to	undocumented	
workers.	The	standard	for	applying	the	statutory	cap	is	whether	the	injured	employee	has	made	a	
“meaningful”	return	to	work,	which	occurs	when	the	employer	has	made	a	reasonable	attempt	to	return	
the	employee	to	work	and	the	employee	has	made	a	reasonable	attempt	to	return	to	work.	One	could	
argue	that	an	employer	cannot	reasonably	(or	legally)	offer	to	return	an	illegal	alien	to	work	and	an	
injured	illegal	alien	cannot	reasonably	refuse	a	job	that	he	or	she	cannot	legally	hold.	Similar	arguments	
have	been	advanced	and	approved	by	Tennessee	courts	in	connection	with	employees	terminated	for	
misconduct.	In	such	cases,	employers	are	not	required	to	make	offers	of	re-employment	in	order	to	avail	
themselves	of	the	lower	statutory	cap	set	forth	in	Tenn.	Code	Ann.	§	50-6-241.	See	Carter	v.	First	Source	
Furniture	Group,	92	S.W.	3d	367	(2003).


	   With	an	estimated	7	million	undocumented	workers	currently	in	the	United	States	labor	force,	most	
of	whom	are	disproportionately	employed	in	hazardous	industries,	such	as	construction,	mining,	and	
agriculture,	we	are	sure	to	see	more	litigation	in	this	area	in	the	near	future.

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