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Illegal Aliens And The Georgia Workers’ Compensation Act

Volume 18, No. 107 September 2006

Bernadett Rosszer
brosszer@deflaw.com

A conservative estimate of the number of illegal aliens living in Georgia is between 228,000 and 250,000. The majority of illegal aliens work in low paying jobs that require the performance of heavy physical labor and are often inherently dangerous, such as food processing and construction work. Consequently, Georgia’s workers’ compensation attorneys have seen a rise in claims filed by illegal aliens over the last several years. This article examines the effect of an injured employee’s illegal status on his or her entitlement to workers’ compensation benefits under the Georgia Workers’ Compensation Act (GWCA). The article also considers the effect of the newly enacted state legislation on immigration on the workers’ compensation system.

A. The Entitlement of Illegal Aliens to Workers’ Compensation Benefits.

It has been established that a worker’s illegal alien status itself does not bar the workers’ right to receive workers’ compensation benefits under the GWCA. In the past, Employers tried to invoke traditional contract principles to void the employment relationship, and also argued that federal law preempts state law on the entitlement of illegal aliens to workers’ compensation benefits. See Dynasty Sample Co. v. Beltran, 224 Ga. App. 90, 479 S.E. 2d 773 (1996); Continental PET Technologies, Inc. v Palacias, 269 Ga. App. 561, 604 S.E.2d 627 (2004); Earth First Grading v. Gutierrez, 270 Ga. App. 328, 606 S.E. 2d 332 (2004); Wet Walls, Inc. v. Ledezma, 266 Ga. App. 685, 598 S.E.2d 60 (2004).

In Dynasty Sample Co. v. Beltran, the Employer tried to use traditional contract principles to show that the employment contract between Beltran, an illegal alien, and the employer was void. The Court of Appeals dismissed the employer’s argument and held that traditional contract principles are not always applicable in determining whether a person is an employee for the purposes of receiving benefits under the GWCA. The Court pointed out that the GWCA has long covered illegal workers and cited O.C.G.A. §34-9-1(2), in which the definition of “employee” includes minors working under contracts that are illegal based on child labor laws, which traditionally would be void or voidable.

In Continental PET Technologies, Inc. v Palacias, the employer, Continental, once again tried to invoke traditional contract principles to bar Palacias, an illegal alien, from receiving workers’ compensation benefits. Specifically, the employer argued that the Immigration Reform and Control Act (IRCA) of 1986 makes it unlawful to employ an illegal alien. Therefore, the employment contract between Palacias and the employer was void. On this basis, the employer argued that Palacias was never an employee of Continental. The Court of Appeals rejected the employer’s argument on the basis that O.C.G.A. §34-9-1 provides that an employee includes “every person in the service of another under any contract of hire” and held that “every person” would necessary include illegal aliens. The Court thus found that Palacias was an employee of Continental at the time of her accident.

In Wet Walls, Inc. v. Ledezma, Ledezma was hurt on the job and received income benefits. The Employer stopped paying benefits after he was incarcerated, deported from the country, and he was banned from returning to the U.S. Ledezma then filed a claim for the reinstatement of his income benefits. The employer argued that he was barred from seeking workers’ compensation benefits under GWCA because federal law preempts Georgia law on the question whether or not an illegal alien may receive workers’ compensation benefits.

The Court of Appeals explained that under the preemption doctrine, Congress may express its intent to preempt state law (1) by expressly defining the extent of preemption; (2) by implied preemption, i.e. by regulating the area so pervasively that an intent to preempt the entire field may be inferred; or (3) by enacting a law that directly conflicts with state law. The Court of Appeals found that none of the above criterions were met in the case because there is nothing in federal law barring illegal aliens from receiving workers’ compensation benefits. Therefore, federal law does not preempt state law on this issue. See also Continental, 269 Ga. App. 561; and Earth First, 270 Ga. App. 328 (barring illegal aliens from receiving workers’ compensation benefits would reward employers for hiring illegal aliens).

Employers also argued that an undocumented worker is analogous to an incarcerated person who cannot receive benefits by law, because neither could “meaningfully accept a job even it were offered.” In Earth First Grading v. Gutierrez, the Court rejected this argument because under the particular facts of that case, the employee’s illegal status did not render him unable to “meaningfully” accept employment. Namely, Gutierrez’s illegal status was unknown until after the period for which he sought benefits and he actually performed work for the employer in the past, despite his illegal status.

B.     Misreprentation of Illegal Status While Obtaining Employment.

Employers also attempted to use the “Rycroft defense” to invalidate the employment relationship and bar the illegal alien’s right to compensation. In Georgia Elec. Co. v. Rycroft, 259 Ga. 155, 378 S.E.2d 111 (1989), the Supreme Court of Georgia held that when an employee fraudulently misrepresents his pre-employment physical condition during hiring, this may void the contractual employment relationship and prevent the employee from obtaining workers’ compensation benefits. The Court laid out a three-prong test: (1) the employee knowingly and willfully made a false representation when applied for work; (2) the employer relied on the false misrepresentation, which was a substantial factor in the decision to hire the employee; and (3) there is a causal connection between the false misrepresentation and the on-the-job injury.

In Dynasty Sample Co. v. Beltran, Beltran, an illegal alien, obtained a job with Dynasty using false documentation. He later severed two fingers in an on-the-job accident and sought workers’ compensation benefits. Dynasty discovered that Beltran intentionally misrepresented his immigration status when he applied for the job. Therefore, the employer denied the claim asserting the Rycroft defense. The Court of Appeals pointed out that Rycroft dealt specifically with misrepresentations regarding an employee’s pre-existing physical condition, not the employee’s immigration status. However, in the absence of clear legislative direction on this issue to the contrary, the Court concluded that the three prong test in Rycroft is also applicable to other types of fraud in the inducement, unless the fraud is of a type specifically addressed by the GWCA. The Court awarded income benefits to Beltran because the employer could not meet the third prong of the Rycroft defense, i.e. there was no causal connection between Beltran’s illegal status and his accident. See also Continental, 269 Ga. App. 561.

C.                 Refusal of Suitable Employment Due to Illegal Status.

The most recent case regarding illegal aliens is Martines v. Worley & Sons Construction, A05A1985 (Feb. 14, 2006). While working for Worley & Sons Construction, Martines suffered an injury to his left foot. Sometime later, he was released by his physician to restricted duty work. His employer offered him a light duty job as a truck driver which was within his restrictions. Martines accepted the job, but when he reported to work, he was asked to show his driver’s license and documentation that he was in the country legally. At that time, Martines revealed he could not produce a Georgia driver’s license because he was an illegal alien. The Administrative Law Judge (ALJ) found that the job offered to Martines was not suitable because he did not possess the required driver’s license.

The case ultimately found its way to the Georgia Court of Appeals. The Court found that the job offered by the employer was suitable to Martines’ physical capacity and found that his inability to accept the proffered employment was not justified because it was not related to his physical capacity or to his ability to perform the job. Martines’ could not accept the job due to his legal inability to obtain a Georgia driver’s license, which was the result of his personal choice to enter the country illegally. This controversial case is currently before the Supreme Court of Georgia upon the Appellant’s Motion for Writ of Certiorari.

D. The Georgia Security and Immigration Compliance Act (SICA).

On April 17, 2006, Georgia's Governor, Sonny Perdue, signed into law the Georgia Security and Immigration Compliance Act (SICA). SICA includes provisions requiring residents 18 years of age or older who are seeking state or federal social welfare benefits administered by a state agency to prove their legal status (with come exceptions, such as emergency medical care, prenatal care, and immunizations of children). Furthermore, SICA also requires that contractors and subcontractors working on state contracts verify the lawful employment status of newly hired employees. SICA has no direct effect on the GWCA because workers’ compensation benefits do not constitute state or federal welfare benefits because the benefits are paid by the employers and insurers. Likewise, there is nothing in the new law that prevents attorneys from representing illegal aliens in workers’ compensation claims or immigration matters.

E. Summary.

The above cited cases demonstrate that an employee’s illegal alien status itself does not bar his or her right to compensation under the GWCA, even if the illegal status was not disclosed at the time the employee was hired. However, Martines v. Worley & Sons Construction is an unexpected shift in the Court of Appeals’ interpretation of the GWCA when considering the entitlement of illegal aliens to workers’ compensation benefits. One must wonder whether Martines represents a change in the Courts interpretation of the GWCA or whether it is a stand-alone decision under the particular facts of that claim.