Supreme Court of Pennsylvania Holds that Employer Bears Burden of Proving Workers’ Compensation Claimant’s Immigration Status
In a workers’ compensation case in which the issue was the burden of proof, Cruz v. Workers Compensation Appeal Board, 2014 WL 3579750 (Pa. July 21, 2014), the Supreme Court of Pennsylvania held that: (1) the employer, who sought to suspend its payment of disability benefits to the claimant based on his alleged use of his wife’s Social Security number to obtain work, bore the burden of proof of establishing, through competent evidence, that the claimant’s loss of earning power was due to his undocumented status under federal immigration law, rather than the injury he suffered on the job; and (2) the claimant’s invocation of his Fifth Amendment right against self-incrimination–in response to the employer’s counsel asking him if he was a naturalized citizen, whether he had a green card, or whether he was an undocumented worker–did not relieve the employer of its burden to present independent and probative evidence regarding the claimant’s citizenship status and his corresponding employment eligibility. The court said:
Although Employer now asserts that, because Claimant testified that he was born in Ecuador and had lived in the United States for 10 years, his invocation of his Fifth Amendment right “corroborates the fact that [he] is an undocumented worker,” we expressly reject this argument. Merely because Claimant was born in a foreign county and arrived here over a decade ago does not ipso facto establish that he is not a U.S. Citizen, or not otherwise eligible to work in this country. As Employer presented no other evidence of record regarding Claimant’s employment eligibility status, any inference drawn from Claimant’s assertion of his Fifth Amendment right in response to questions on this topic was too speculative, standing alone, to constitute substantial evidence to establish that Claimant’s loss of earning power was not related to his work-related injury and due, instead, to his status as an undocumented worker.
The court was divided on the issues. Justice Debra McCloskey Todd wrote the majority opinion, joined by Justices Max Baer and Seamus P. McCaffery. Justice Thomas G. Saylor wrote a concurring opinion, joined by Justice Ronald D. Castille and in part by Justice McCaffery, in which he stated that he would be receptive, “in the context of a dispute in which the issue is properly raised,” to reconsidering the soundness of Reinforced Earth Co. v. WCAB (Astudillo), 570 Pa. 464, 810 A.2d 99 (2002), in which a plurality of the court held that a worker’s immigration status alone can present a lack of earning power for purposes of an employer’s request to suspend benefits, so as to relieve the employer of the burden to demonstrate physical recovery from the injury.
Justice J. Michael Eakin wrote a concurring and dissenting opinion, joined by Justice Correale F. Stevens, in which he said:
I remain of the opinion workers’ compensation benefits “should yield to the injunction of [c]ongressional policy against employment of unauthorized aliens [and] we should assume that the legislature did not intend to reward those who violate federal law in obtaining employment by allowing them to participate in a social insurance scheme for Pennsylvania workers.” Reinforced Earth Company v. Workers’ Compensation Appeal Board (Astudillo), 570 Pa. 464, 810 A.2d 99, 111-12 (Pa.2002) (Newman, J., dissenting, joined by Eakin, J.). I thus believe that if an employer puts a claimant’s immigration status at issue, the claimant must establish he or she is legally entitled to work in the United States as a prerequisite to obtaining benefits under the Workers’ Compensation Act.
In a footnote, Justice Eakin added:
I am not incognizant of the likelihood employer was aware of claimant’s immigration status at the time claimant was hired and of the concomitant policy in permitting employer to “have its cake and eat it too” by shielding it from liability under the Workers’ Compensation Act for being complicit in, if not an accomplice to, hiring unauthorized aliens contrary to federal immigration law. However, tougher employer sanctions for engaging in such behavior are to be found in the General Assembly, not this Court, and unauthorized aliens are not without recourse for injuries caused by their employer’s negligence, because “[i]f an unauthorized alien is ineligible for benefits under the [Act], it follows that the employer should not enjoy the immunity from suit granted by 77 P.S. § 481 … and [the employee] may sue the employer for injuries caused by the negligence of the employer.” [Reinforced Earth], at 111 n. 4; see also 77 P.S. § 481(a) (emphasis added) (stating “liability of an employer under this act [the Workers’ Compensation Act] shall be exclusive and in place of any and all other liability to such employees”).