Illegal Worker Not Entitled To Rehabilitation

The Court uses the phrase illegal worker to describe a person working in California that does not lawfully reside here. It is a federal crime to enter the US without the permission of the United States Government.

The applicant was employed at a restaurant when he injured his back.  The day after the injury the physician released the applicant to modified duty. The applicant returned to modified duty. The employer discovered that the applicant was not legally in the United States. The applicant had provided the employer with an invalid social security number.

The applicant applied for workers’ compensation benefits. Apparently there was a hearing.  The workers compensation judge awarded the applicant temporary total disability up until the permanent and stationary date. The judge also awarded the applicant $16,000 worth of vocational rehabilitation benefits. Normally, vocational rehabilitation would not be tried with the main issues. This opinion does not give an analysis of the sequence of events in this case. We do not know what happened at the rehabilitation bureau prior to the trial.

The case was appealed. The opinion does not explain what happened on petition for reconsideration. The employer contended that the worker should not be entitled to temporary or permanent disability because the worker was not legally working in the United States. The appellate court indicated that a worker’s immigration status does not affect the entitlement to temporary disability payments. The court cited Labor Code section 3351 which states that “every person in the service of an employer…whether lawfully or unlawfully employed, and includes: Aliens and minors”.

The court then dealt with vocational rehabilitation. In this case if the employer offers modified or alternative work and the employee either accepts or rejects the offer, the employee is not entitled to vocational rehabilitation services. Here the employer offered the modified work and then discovered the applicant was not legally permitted to work in the United States. Continued employment of the applicant would have subjected the employer to civil penalties, criminal fines and imprisonment.

The employer argued that providing the applicant vocational rehabilitation would deny the employer equal protection of the laws. This court agreed. The court indicated that an illegal worker would not have equal protection but would end up having more protection than a legal worker. In this case a legal worker would not be provided job training because the employer had offered the employee modified work. Therefore, if an illegal worker were to be entitled to vocational rehabilitation training the illegal worker would be entitled to more extensive services than a legal worker.

Case: Del Taco V. W.C.A.B. (Gutierrez)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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