FECA, DEA and OIG

Who is an employee entitled to workers' compensation benefits anyhow?

If it's the Federal Government, employees include informants and whistleblowers who remain anonymous due to their intentionally secret lifestyle as a consequence of their spy status.

Something doesn't smell right...

And because they're so secret, the government doesn't even know how much, or for how long, some of these informants receive compensation under the Federal Employees Compensation Act because no one keeps any records - these people are, after all, confidential sources.

An audit report released yesterday by the Office of the Inspector General, the investigative arm of the U.S. Department of Justice says informants working with the Drug Enforcement Agency also get federal employee workers' compensation and death benefits without any oversight or review, according to a story published this in this morning's issue of WorkCompCentral News.

The OIG report says the DEA has been using FECA to pay informants for more than 30 years, but the cost is unknown because there are only a handful of records for any of the claims.

The report references a DEA manual that states FECA pays benefits when a confidential source is injured or killed as a result of cooperating with the agency. The manual references another DEA document that says non-federal law enforcement officers injured or killed while apprehending someone who committed a federal crime are covered by FECA and suggests this also applies to informants.

The DEA cites United States Code Title 21, Section 886 as the basis for allowing informants to collect comp benefits. But that section simply authorizes the attorney general to pay confidential sources out of DEA funds. It has no relationship to FECA, according to the OIG.

"In our view, 21 U.S.C. 886 does not provide a legal basis for the DEA's position that its confidential sources were appropriately categorized as non-federal law enforcement officers eligible for FECA benefits," the audit says.

After reviewing a draft of the audit report, the DEA said U.S. Code Chapter 5, Section 8101(1)(B) extends FECA benefits to any person working with the federal government and performing jobs similar to what another federal worker might do.

Regardless of whether this section does, in fact, allow the DEA to qualify informants for federal workers' compensation benefits, the OIG said, it is not the legal basis the agency cites in its own policy documents. The agency needs to consult with the Department of Justice "to come to a conclusion about whether there is a legal basis and, if so, whether it is appropriate to extend eligibility for FECA benefits to confidential sources," the audit says.

The extent of confidentiality of this program is highlighted by sources cited in the report who said they don't keep any files on these cases. They rely on the Department of Labor to manage and administer the claims. But the DoL likewise handles confidential cases differently, and likewise keeps nearly zero records on them, so there is no audit trail, no accounting for the cost, no accountability, period.

What OIG has uncovered is alarming. The report cites investigative cases uncovering millions of dollars paid by the DEA to informants for things like housing, while the informant also collects monthly FECA payments.

The DEA in response to a 2005 audit said confidential sources are not "choir boys" and the DEA sometimes has to rely on information from people whose credibility is questionable.

"Therefore, when the DEA submits an application for a confidential source to receive FECA benefits, we believe that the DEA should employ appropriate oversight and evaluate these cases thoroughly," OIG said. "Although the identity of the claimants may be sensitive, this does not alleviate the DEA's responsibility to be judicious stewards of taxpayer dollars and ensure that payments are warranted."

As you might expect on something as embarrassing and culpable as this is, WorkCompCentral's calls to the DEA's Office of Congressional and Public Affairs were not returned Tuesday.

The ADA and Work Recovery Liability

Jennifer Christian, MD, President, Webility Corporation and Chair, Work Fitness & Disability Section, American College of Occupational & Environmental Medicine, and Aaron Konopasky, JD, PhD, Senior Attorney Advisor ADA/GINA Policy Division for the Equal Employment Opportunity Commission, recently released an announcement about the broad reach of amendments to the Americans with Disabilities Act.

The bottom line - if an employer is waiting for injured workers to reach Maximum Medical Improvement before attempting an accommodation, then the employer is exposed to ADA penalties and liabilities; i.e., if an injury or illness is so bad that a person misses time from work then the veil of the ADA rises and it could be considered a disability under the ADA.

“Once you get into a place where you're talking about medical conditions that are so bad they actually prevent you from going to work in the first place, to me that says … we've already jumped the hurdle of (defining disability),” Konopasky said.

This doesn't apply to minor injuries or illnesses; a laceration that will heal in 7 days or a head cold.

“The person's not covered by the ADA if they have a laceration that's going to heal in seven days because that's essentially a trivial interruption in the person's ability to work,” Christian said. “But if on day one the person has a chronic condition they haven't revealed about themselves, that person probably is covered on day one.”

Dwight obviously would qualify.

And if there is some reasonable accommodation the employer can make to help that person get back to work, the ADA requires the employer to do it.

Flexible leave policies count as reasonable accommodations for employees with disabilities, Konopasky said. However, according to Christian, employers also need to understand that the ADA is a protection of the right to work – therefore, businesses still need to try to find a way to bring a person back to his job if possible.

There are two common myths:

1. FALSE: In workers’ compensation, the time to think about the ADA is at MMI; MMI is late among several points in the post-injury timeline when the ADA needs to be considered.

2. FALSE: The ADA's requirement for an interactive process doesn't apply in decision-making about transitional work assignments; In fact injured workers do need to be active participants in the workers’ comp stay-at-work and return-to-work process.

The ADA is about civil rights for people with disabilities, not financial benefits of one kind or another, say Christian and Konopasky. The fundamental purpose of the ADA's employment provisions is to help people with disabilities get and keep jobs, as long as they are qualified to do the work and can meet productivity standards. The cause of the disability is irrelevant. It does not matter what other types of policies or programs are also involved -- whether workers' compensation, FMLA, sick pay, or disability insurance programs.

A disability can be newly acquired, transitory, fluctuating, progressive, or longstanding and stable. It can be the result of injuries, illnesses, congenital conditions, or the natural aging process. The only relevant question is whether the disability is now or is perceived as potentially having a significant impact on someone’s ability to perform their job, take home their regular paycheck, and stay employed.

Christian and Konopasky highlight 5 practical implications for management of ALL types of health-related employment situations:

1. As the Federal agency that enforces the employment provisions of the ADA, EEOC's biggest concern in situations involving disability leaves of any type will be that someone with a disability is being forced to take leave even though he or she could do the essential functions of the job with a reasonable accommodation. Everyone involved in the decision to keep someone out of work -- doctors, third-party benefit administrators, managed care companies, workplace supervisors and employee program managers -- should keep that fact firmly in mind, so that people with disabilities are not needlessly forced out of the workplace.

2. Only the employer is accountable for complying with the employment provisions of the ADA. However, treating physicians and the employer's vendors (benefits claims administrators, managed care companies) who fail to communicate with the employer during the stay-at-work and return-to-work process may be exposing the employer to increased risk/liability. When a vendor or a doctor (especially one who has been selected by the employer) fails to notify the employer that an employee described difficulty working or an adjustment that might allow them to work, the employer could be held liable for failing to provide that accommodation -- even though the information was never properly passed along. Doctors and vendors also can help educate employees and small or unsophisticated employers to ensure that the law is followed.

3. Some employees may express the desire to remain on leave, rather than return to work with a reasonable accommodation. Of course, employees with disabilities must be allowed to use accumulated sick or annual leave, just like any other employee. And they may have a legal right to insist on leave if, for example, they qualify for FMLA. But if an individual with a disability has no discretionary leave, and a reasonable accommodation would allow performance of job functions in a manner that is safe and consistent with his or her medical needs, then the employee may be required to return to work with the accommodation.

4. Paying people money to sit home who are well enough to do something productive does not count as a reasonable accommodation under the ADA, especially when they were not part of the decision-making process that has put them out of work. The employee must be actively involved in arranging any temporary or long-lasting adjustments to their usual jobs in order for the employer to meet the interactive process obligation. With respect to specific cash payments made under workers' compensation--

A. Temporary Total Disability (TTD) Benefits - There is little difference between cash payments under workers' comp TTD and disability benefit programs for personal health conditions except how the amounts are calculated. Employees are usually receiving them for one of four reasons:

1. The doctor wrote "no work" because their patient's medical condition is so severe or unstable that it is unsafe for them to do anything except try to get better; 

2. The doctor wrote "no work" because of a perception that the employer cannot or will not provide safe and suitably modified work on a temporary or long-term basis; 

3. The doctor released their patient to work with restrictions, but state or federal law, or a union contract means that the employee cannot work until fully able to do the essential functions of their job, so the employee is put out of work temporarily. 

4. The doctor released their patient to work with restrictions, but the employer said they cannot meet those restrictions (cannot find appropriate work to assign them within their current work capacity) so the employee is put out of work. 

In all but # 1 above, the ADA may apply. However, the employee is often not consulted as these decisions are being made. As stated above, giving the employee money is not a reasonable accommodation, and the ADA requires that the employer interact with the employee in looking for a solution that will enable the employee to stay at work.

B. Other types of cash benefits: Temporary Partial Benefits, Permanent Partial Benefits and Permanent Total Benefits - These cash awards help compensate employees for economic loss as a result of their injuries. However, as stated above, giving people money is not a reasonable accommodation, and does not accomplish the public purpose of the ADA.

5. Employers sometimes limit the length of transitional work assignments (TWA) in order to avoid them turning into required permanent accommodations or becoming subject to union job bid rules. To avoid ADA liability, a "usual" 90 day limitation policy that provides for an individualized assessment of the individual's situation and possible extension is more appropriate. If there is a specific reason why extending a particular employee's TWA or granting extra (paid or unpaid) time off to heal more completely will allow them to keep their job, that might be a reasonable accommodation. Some temporary adjustments are reasonable accommodations (including, for example, temporary use of adaptive equipment or temporary relocation of a workstation to the ground floor) and may need to be extended unless doing so would involve significant difficulty or expense. However, TWAs may have other aspects that can be discontinued without fear of ADA liability, including temporary reductions in productivity requirements and elimination of essential job functions. These measures go beyond what the ADA requires.

Determining whether a person has a disability can be a time-consuming process by itself, Konopasky said. Because of that, he suggested it might be easier for employers to treat every employee missing work due to an injury as though the ADA applies to them.

“Practically speaking, you may not want to go through that because it's such a weighty exercise and so many things are disabilities now; why not just assume that it's a disability?” he said.

Sierra versus Salas

In June the California Supreme Court ruled that Sierra Chemical Co.'s argument that Vicente Salas was not legally eligible to hold a job in the United States was not a complete defense to the worker's claims under the state's Fair Employment and Housing Act.

The company has now asked the United States Supreme Court to review that decision, arguing that Federal immigration law and policy override California's FEHA laws.

Salas started working for Sierra Chemical in 2003. He signed an employment eligibility verification form, where he wrote a Social Security number and provided a resident alien card that attested to his eligibility to work in the United States. Salas also signed a W-4 income tax statement, using the same Social Security number.

He later hurt his back and filed a claim for workers' compensation benefits. He was able to return to work, subject to medical restrictions, but was laid off that December as part of Sierra's seasonal reduction of production line staff.

Sierra sells swimming pool chemicals so when the weather cools, demand decreases and the company lays off many of its production line employees, recalling them when consumer demand rises with the temperatures in the spring.

Sierra offered to rehire Salas in the summer of 2007 if he obtained a release from his doctor authorizing him to return to full-duty status. Salas' doctor, however, would not clear him to work without restrictions.

So Salas sued Sierra, alleging that he was disabled and that Sierra had failed to provide reasonable accommodations under California FEHA law among other causes of action.

During discovery, Sierra learned that the Social Security number it had on file for Salas was being used by a North Carolina man, Kelley R. Tenney. Tenney averred, under oath, that the number was assigned to him, and that he had not given Salas permission to use his Social Security number to obtain work.

Sierra then raised defenses that Salas' FEHA claims should be barred under the equitable doctrines of after-acquired evidence and unclean hands.

The after-acquired evidence doctrine is a defense against discrimination or refusal-to-hire suits, where the employer discovers wrongdoing that otherwise would have resulted in termination or refusal to hire. The unclean hands doctrine says that it is unfair to grant relief to a person accusing someone else of wrongdoing if he engaged in a wrongdoing himself.

The Superior Court ruled that Salas could not bring a FEHA claim against his employer, as a matter of law, since he was "not lawfully qualified" to take the position that he allegedly was denied after he suffered his industrial injury.

The 3rd District Court of Appeal upheld her decision, but a majority of the California Supreme Court reversed, concluding that undocumented employees are entitled to pursue claims for retaliation and discrimination against their employers.

Justice Joyce Kennard, retired but sitting on the bench by special appointment, wrote for the majority that it would "frustrate rather than advance the policies underlying federal immigration law to leave unauthorized alien workers so bereft of state labor law protections that employers have a strong incentive to 'look the other way' and exploit a black market for illegal labor."

Justice Marvin Baxter dissented, stating that the question of whether Salas was ineligible under federal immigration law to be employed in the United States was an issue that had yet to be decided.

If Salas was in fact unable to legally hold employment, Baxter said he thought federal immigration laws ought to foreclose Salas from any recovery of post-termination lost wages under California law.

The California Supreme Court opinion is here.

The U.S. Supreme Court case is Sierra Chemical v. Salas, No. 14-369.

FEHA Ain't Work Comp

Whether one is an employee is always an interesting question in workers' compensation.

Many employers, and workers for that matter, erroneously believe that if they are designated as an independent contractor for tax purposes, receiving a 1099 report on their wages, that they are not employees for workers' compensation matters. This is a relatively common occurrence.

But the issue can arise in other contexts, and a recent California case highlights this paradox.

Sierra Madre is a small city in the north-east sector of Los Angeles County.

Kailyn Enriquez applied for a position as a firefighter for the Sierra Madre Fire Department in October 2007. The city selected her to work as a probationary volunteer firefighter the following January.

The city hires and fires volunteer firefighters, sets the rules and regulations for their work, requires them to work specific shifts and to arrive on time and requires them to report to supervisors and to work within the framework of the SMFD. Volunteer firefighters also receive training and workers' compensation coverage.

The city pays volunteer firefighters a stipend of $1 per day, every 90 days, and also pays the volunteers $33 per day if they are "hired out" to other agencies.

On April 10, 2008, Enriquez began the background check procedure required for employment by the Sierra Madre Police Department.

Four months later, the SMFD issued her a disciplinary notice stating that she was "[d]ishonest," "[d]isobedient" and had taken actions that "adversely affect the safety of employees or others" and harassed her SMFD colleagues (she allegedly discussed private personnel matters with others not approved to receive such information).

The SMPD then withdrew its offer of employment to Enriquez, citing this disciplinary notice as the reason.

At the end of 2009, the SMFD informed Enriquez that she was being placed on leave from her position as a volunteer firefighter because she had not yet obtained her Emergency Medical Technician certification. The city sent her a letter in March warning her that if she did not get certified, she would be fired effective June 1.

Meanwhile, Enriquez learned she was pregnant. Her doctor imposed severe movement restrictions on her because she had placenta previa.

Enriquez contacted the SMFD on June 6, 2010, to request a leave until the spring of 2011 due to her pregnancy.

The SMFD responded that she had been terminated as of June 1, because she had not obtained her EMT certification.

The actual factual contentions in the appellate opinion are a bit more complex, and give the case a flavor of long-standing malcontent between Enriquez and the city's departments. There obviously is more to this story than the recited facts.

Regardless, Enriquez then filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission asserting that the SMFD had wrongfully terminated her because of her gender, her pregnancy and her temporary disability.

She asserted similar allegations in a complaint to the California Department of Fair Employment and Housing.

The EEOC dismissed Enriquez's charge on the ground that there was no employer-employee relationship between Enriquez and the city, but the DFEH issued her a right to sue letter.

Enriquez lost at the law and motion level in superior court on the City's demurrer.

The Second District Court of Appeal affirmed.

The facts stated in the court's opinion don't go into the when, why or how regarding workers' compensation benefits, but the court acknowledge's Enriquez' statement that she received workers' compensation benefits. Enriquez thus argued that her receipt of work comp made her an employee under the law.

The court rejected this analysis noting that different laws have different impacts on employment status under different factual settings and in this case the fact of receipt of work comp benefits did not convey on Enriquez employee status for purposes of the Fair Employment and Housing Act.

The Second District quoted the recent case of Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143:

"The fact the City provides volunteer reserve officers with workers’ compensation benefits if they sustain industrial injuries does not change the fact they serve without remuneration. The City’s workers’ compensation benefits, similar to the recurring $50 reimbursement for a volunteer’s out-of-pocket expenses, simply serve to make a volunteer whole in the event the volunteer were to sustain injury while performing his or her duties. Irrespective of the significant value of workers’ compensation benefits, the purpose of workers’ compensation is ‘to compensate for losses resulting from the risks to which the fact of employment in the industry exposes the employee.’ [Citation.] The fact the City ensures that unpaid volunteers such as [the plaintiff] are compensated for industrial injuries does not mean that such persons are deemed employees for purposes of the FEHA.”

The case is Enriquez v. City of Sierra Madre, No. B240916, 10/16/2013, unpublished.

Budget Stalemate and Work Comp

The federal government is on hold: services are denied, properties shuttered, and federal workers are either furloughed or working without regular pay.

The current budget fiasco in Washington DC is headline news, though most of us working the daily trenches aren't all that impacted by Congress' impasse. After all, we're in workers' compensation and generally on a state level.

But we forget that there are federal workers' compensation programs too and those most in the line of hazardous duty and thus susceptible to work injuries are in the proverbial rock and hard place.

The Federal Bureau of Investigation Agents Association is calling on Congress and President Obama to end the furlough of federal workers because agents are expected to work through the furlough and get paid when the government reopens.

The issue is that FBI agents injured during the furlough cannot get sick leave and must wait for benefits through the Federal Employees' Compensation Act which they say creates an unnecessary delay and hardship for these workers.

Paul Nathanson, the association's spokesman, said agents who were in the middle of recovery from injuries prior to the shutdown are considered furloughed until the shutdown ends. Agents who are injured during the furlough will not get paid for the days they cannot show up for work.

Joshua Zive, outside counsel to the association, said in an interview with WorkCompCentral Tuesday that the group has been unable to confirm with the federal Office of Workers' Claims whether Continuation-Of-Pay benefits will be paid during the government furlough.

FECA provides COP benefits at a worker's full salary for the first 45 days following an injury.

Most of the FBI's agents have been designated as exempt from the U.S. Antideficiency Act, which prevents the federal government from spending money that has not been appropriated.

The exemption allows agents to work during the government shutdown but delays payment of wages until the government reopens.

FBI Agents Association President Reynaldo Tariche said in the press release that agents injured on the job during the shutdown will be placed on immediate non-paid furlough status and will not be eligible for sick leave if they don't report for duty.

Tariche said agents hurt on the job during the shutdown will be able to collect FECA benefits but face a "long and arduous process."

The Office of Workers' Compensation Programs posted a bulletin early this month advising that injured federal workers should receive COP benefits during the shutdown but warned, that in the event that an agency lacks the funds to pay COP benefits, workers will have to file for regular FECA wage-loss compensation during the period.

The agency said that no COP benefits will be paid to those not scheduled to work because of the furlough.

The FBI employs about 36,000 people. About 14,000 are special agents and the balance are technical support personnel.

FEHA: Bad Facts Make Bad Law

This is not about a workers' compensation case, but it is about disability discrimination and what I perceive as a good example of how job dissatisfaction clouds judgment.

The consequence is case law that probably isn't the clearest statement of the law, and just may make it a little more difficult for injured workers to claim a violation of the California Fair Employment and Housing Act (FEHA). 

The reason is because a claim of total disability means that one can not work, which means that one can not perform the essential functions of a job, and thus there could be no violation of FEHA. T'his would seem evident, but the timing of the claim of inability to work is the salient issue and failure to elucidate on that prime date can be fatal to a claim.

The facts in the U.S. 9th Circuit Court of Appeals ruling in Lawler v. Montblanc North America, No. 11-16206 are important because the court fails to distinguish WHEN the claim of disability is relevant to return to work, and because the plaintiff failed to meet the initial burden of proof leading to this ambiguity.

Lawler had worked as the manager of the Montblanc boutique at the Valley Fair Shopping Center for roughly eight years.

In June 2009, Lawler's doctor diagnosed her with a chronic condition known as psoriatic arthritis and recommended that Lawler cut back on her hours. Store managers typically worked 40 hours per week, but for the store's peak sales period – from Thanksgiving until New Year's – would work 60 to 70 hours per week.

Lawler contacted her regional manager to request a reduced work week of 25 hours, and the manager asked her to provide additional information about the nature of her impairment and the accommodations she would require.

A few days after receiving the manager's response, Lawler fell while at home and broke two toes. She said her arthritis was to blame, since it had caused her hip to give out while she was turning to grab her purse.

A podiatrist set her foot and said Lawler could return to work on Sept. 2, 2009.

Lawler then called her regional manager to request a temporary disability leave. The manager asked Lawler to fax over documentation regarding her foot injury. Since Lawler did not have a fax machine, she drove to the Valley Fair store to use the fax machine there.

While Lawler was at the store, Montblanc's President and Chief Executive Officer Jan-Patrick Schmitz, and Vice President of Retail Mike Giannattasio, happened to drop in.

Schmitz allegedly confronted Lawler about her manner of dress, her failure to have the company's newest eyewear products on display, and the way repair parts were being stored. Lawler said Schmitz spoke to her in a tone that was "intimidating, abrupt," and "gruff."

Lawler said he also made other demands. According to her version of events, Lawler told Schmitz she was on disability leave and couldn't do the work, but Schmitz told her to "do it or else."

After that incident, Lawler complained about Schmitz's conduct to her regional manager and she obtained a letter from her doctor advising that she take an extended leave of absence through Jan. 5, 2010.

Montblanc sent the doctor a letter asking if there were any accommodations it could make that would allow Lawler to be regularly present at the store and performing her job duties. The doctor responded that Lawler needed to remain off work until January.

A week later, Lawler's regional manager called her and told her that she was being terminated, effective Oct. 31, 2009. Montblanc did not hire a replacement manager until May 2010.

After her termination, Lawler filed a complaint with the California Department of Fair Employment and Housing against Montblanc and Schmitz. She received a right-to-sue letter and then filed suit in the Santa Clara County Superior Court, asserting claims for discrimination, retaliation, harassment and the intentional infliction of emotional distress.

Montblanc removed the case to federal court where summary judgment was granted in favor of the company.

The trial court said it was incumbent on Lawler to show that she was capable of performing these in-store job duties, but Lawler failed to show she was capable of working in any capacity at all.

On appeal the 9th Circuit noted that Lawler admitted that her arthritis prevented her from working at all, so it did not matter that Montblanc did not offer to accommodate her. Lawler had not met her initial burden of proof.

The criticism of the case from outside observers is that the court did not distinguish the timing of the disability status - i.e. at what point was there a declaration that Lawler would be able to return to work despite her disability? Note that the facts show that Lawler was taken off work until Jan. 2010, but that the company terminated her in Oct. 2009 and didn't hire a replacement until May 2010.

There does not appear to be any evidence either that Lawler was ready to return to work Jan. 2010, or that she was permanent totally disabled from returning to work in any capacity after that date.

But, other observers note that there are several cases across the country holding that a managerial position in a retail establishment inherently requires a high number of hours per week and that's an essential function of that job, so a person who needs a reduced schedule is not qualified to the position.

What it all really comes down to is basic evidence at the time the case is brought - Lawler needed to prove at the time she filed her case that she was capable of performing the essential functions of the job, including working up to 70 or 80 hours per week. According to the court opinion Lawler admitted that she couldn't work at all. We don't know when this admission occurred, but it obviously was a paramount fact in the court's ruling.

The lesson for injured workers is to make yourself available for work, or at least present evidence of capability to perform essential job functions. Then it's up to the employer to decide whether or not they will risk failure to reasonably accommodate.

While injured worker representatives may view the Lawler case as a Catch-22 situation, I see it as a common sense application of the law to the facts. If you, as an injured worker, claim an inability to work, then you can't complain later of FEHA discrimination where no reasonable accommodation would be applicable since there is no ability to work at all.

What really happened in the Lawler case is that she jumped the gun and brought suit too early. Reading between the lines, she was upset at her treatment by CEO Schmitz.

Personality conflicts make poor reasons to sue but I suspect this is a more frequent cause of suit than is generally recognized. The old law school saying - bad facts make bad case law - applies here.

Salas, FEHA and the Supreme Court

If there's one topic that generates as much, if not more, debate in workers' compensation than the Affordable Care Act (ACA), it's undocumented workers.

In this morning's WorkCompCentral news, legal editor Sherri Okamoto reviews national trends and issues concerning various claims that have been made by undocumented workers involving either workers' compensation or other employment disability or discrimination scenarios in light of a pending California Supreme Court case, Salas v. Sierra Chemical.

Salas involves a worker's claim for violation of the Fair Employment and Housing Act (FEHA) premised on his employer's refusal to re-hire him and offer him modified work after he suffered an industrial injury. Sierra Chemical defended its action on the basis that Vicente Salas had originally obtained his job by using a false Social Security number to establish his eligibility to work in the United States.

The biggest trap that employers fall into in California FEHA cases is not failure to re-hire or discrimination, but the failure to engage in the "interactive process" - a statutorily mandated process whereby the employer's obligation is to take various steps along with the employee prior to making any employment or re-hiring decision.

Under FEHA, the big no-no is NOT failure to rehire, but the failure to EXPLORE re-hiring in a formal process that includes participation of the employee.

This, I think is a very significant distinction as you will see.

In the Salas case at the trial level, summary judgment was granted in favor of Sierra, and the 3rd District Court of Appeal unanimously affirmed, concluding that Salas "cannot be heard to complain that he was not hired" since he "was not lawfully qualified for the job."

The facts of Salas are summarized in the 3rd DCA opinion:

Sierra Chemical manufactures, packages, and distributes chemicals primarily used for water treatment. Demand for Sierra Chemical's products rises in the spring and summer due to the increased use of swimming pools, and declines during the fall and winter. Because of this, the company employs a number of seasonal production line workers.

In May 2003, Sierra Chemical hired Salas to work on its production line, filling containers with various chemicals. Salas provided the company with a resident alien card and a Social Security card. After Salas signed a Department of Homeland Security employment eligibility verification form (I-9 form), on which he wrote the Social Security number, Sierra Chemical's general manager used the resident alien card as verification of Salas's identity and eligibility to work in the United States. Salas also signed State of California employee's withholding allowance certificate (W-4 form), which included the same Social Security number. Salas also printed this number on his employment application and signed the application verifying the truth of the information contained therein and acknowledging that any false statements would be grounds for dismissal.

In October 2003, Salas was laid off as part of Sierra Chemical's annual reduction in production line staff. He was recalled to work in March 2004, laid off in December 2004, and again recalled to work in March 2005. When Salas was rehired in 2004, he provided Sierra Chemical with the same resident alien card and Social Security card used to secure his initial employment. He also filled out and signed I-9 and W-4 forms, both of which included the same Social Security number. By December 2005, Salas had accrued enough seniority to avoid being laid off that year.

In March 2006, Salas injured his back while stacking crates at the last stage of the production line. He reported the injury to Leo Huizar, the production manager, and went to Dameron Hospital Occupational Health Services (Dameron Hospital) for treatment. The next day, Salas returned to work with the following restrictions: "1) no lifting over 10-15 pounds, 2) no prolonged sitting, 3) no prolonged standing or walking, and 4) limited bending, twisting or stooping at the waist." Sierra Chemical accommodated these restrictions by allowing Salas to sweep the work area, rinse empty containers, and perform other production line duties that did not require 34*34lifting crates. When Salas provided Huizar with a doctor's release in June 2006, he was returned to full duty.

In August 2006, Salas again injured his back while stacking crates at the end of the production line. He returned to Dameron Hospital for treatment and was placed on the same work restrictions. Following this injury, Salas brought a workers' compensation claim against Sierra Chemical and its insurance carrier, State Compensation Insurance Fund. In December 2006, Salas was again laid off as part of Sierra Chemical's annual reduction in production line staff.

In May 2007, Salas received a letter informing him that Sierra Chemical was recalling employees who were laid off the previous year. The letter instructed Salas to contact Huizar to "make arrangements to return to work" and also stated: "Bring a copy of your doctor's release stating that you have been released to return to full duty." According to Huizar, Salas contacted him after receiving this letter and stated that he could not return to work because he had not received a medical release, but that he expected to receive such a release following his doctor's appointment in June. Huizar agreed to hold the job open until Salas received the release, but never heard back from Salas.

However, according to Salas, Huizar contacted him in March 2007. When Salas said that he wanted to return to work, Huizar asked whether he was "100% recovered" from his back injury. Salas informed Huizar that he was "not completely healed," to which Huizar responded that allowing him to return to work would violate Sierra Chemical's policies. After receiving the recall letter in May 2007, Salas again talked to Huizar, who said that "he wanted [Salas] to work with them but only if [he] was fine, a hundred percent well with [his] back. If not, then [he] should not show up to work." Salas did not return to work.

Salas sued Sierra Chemical, alleging among other causes of action disability discrimination in violation of FEHA by failure to make reasonable accommodation for his disability and failing to engage in an interactive process to determine such a reasonable accommodation.

The California Supreme Court accepted review of the 3rd DCA decision in November and briefing by the parties is underway.

Attorneys representing Salas told Okamoto that a "majority trend" in the federal courts and state courts of last resort has been "by and large to preserve the rights and remedies available to undocumented workers."

The biggest controlling case is a U.S. Supreme Court ruling from 10 years ago called Hoffman Plastic Compounds Inc. v. National Labor Relations Board which limited the remedies to undocumented workers under National Labor Relations Act. Since then the courts have distinguished Hoffman on the basis of facts and other legal elements related to the specific law under which an immigrant is seeking a remedy.

Indeed, it appears that the real basis for the granting of any relief to an undocumented worker under any particular employment law, workers' compensation included, is what remedy is being sought by the worker.

One of the attorneys that represented Hoffman Plastics before the Supreme Court was Ryan D. McCortney of Sheppard, Mullen, Richter & Hampton.

The remedy being sought "is the key to Hoffman Plastics," McCortney told Okamoto. "If the remedy is reinstatement and lost earnings, post-termination, then Hoffman Plastics should bar that case," he explained. "If the remedy is something else, like wages for work already performed, then Hoffman is not going to bar that."

The 3rd DCA in Salas went through a very detailed, thorough analysis in upholding the trial court's grant of summary judgment in favor of Sierra Chemical. But I think the 3rd DCA's analysis is flawed and that flaw is evident by the court's characterization of the case as "a refusal to hire case."

And this is why the California Supreme Court has taken the matter up.

Because the Salas case is really about FEHA and failure to engage in the interactive process - the single biggest legal fear any California employer could face.

In the "good old days" FEHA was not a concern in workers' compensation cases because vocational rehabilitation essentially fulfilled the requirements of an "interactive process." The elimination of vocational rehabilitation as a benefit in 2004 opened the door for unwitting employers who failed to recognize the liability of such a simple, yet mandatory, legal requirement.

The Salas case is an important case for California because the remedy being sought would not be reinstatement to work, though that is one of the potential remedies under FEHA. No, the remedy would be the penalty provision of FEHA, punitive damages, that has nothing to do with future wages or other employment dependent damages.

I think the public policy of most of the United States, as reflected in various court opinions through out the nation and California, is that an undocumented worker may not get relief where the remedy is based on wages or benefits that would not be available had the worker's true status been known, but that remedies not determined by actual employment status are available.

The simple theory supporting this position is that an undocumented worker should not be rewarded for working illegally, and the employer should not be rewarded for hiring illegally. The line gets drawn at the point where undocumented status becomes known to the employer. If the employee can not legally work then return to work laws necessitate rejection of the employee. But the portion of the law that mandates formal procedures that are designed to keep employees informed, and employers honest, do apply.

And if the employer knows of the employee's true status, and maintains an employment relationship with the employee, then the employer will have the book thrown at it.

FEHA requires some process to determine ability to return to work; that process must be followed and that position has been upheld over and over again in California courts regardless of the employment status of the complaining worker.

I suspect the Supreme Court will follow this line of reasoning.

FEHA Case Involving Undocumented Worker Doesn't Smell Right

When it comes to undocumented workers and protection of employee rights I am one confused individual.

On the one hand, we have laws that are in place to level the playing field for both workers and employers - laws that mandate legal procedures be followed before one can work, or be hired for work, in the United States.

On the other hand, sometimes those laws conflict with basic human rights and their enforcement seems to be in conflict with their intended purposes.

In California we have the Fair Employment and Housing Act (FEHA) that says that an employer can not discriminate against those who claim disability on the job and must make "reasonable accommodation" for them, including a process that is vaguely described (more thoroughly by regulation) as the "interactive process."

It is the interactive process that trips up most employers that are subject to FEHA and subjects them to six digit liability and attorneys fees.

The Third District Court of Appeals (3rd DCA) in August of last year ruled for an employer, upholding summary judgment in Salas v. Sierra Chemical, because the employee did not refute evidence of illegal entry in the US - the reasoning was that if Salas was not legal to be employed in the US then any accommodation or process tied to accommodation under FEHA would be moot and essentially in violation of US immigration laws and policy.

The facts of the case are that Vicente Salas began working for Sierra Chemical in 2003. At that time he signed an employment eligibility verification form, where he wrote a Social Security number and provided a resident alien card that attested to his eligibility to work in the United States. Salas also signed a W-4 income tax statement, using the same Social Security number.

Salas hurt his back while stacking crates on Sierra's production line in 2006 and filed a claim for workers' compensation benefits. He was able to return to work, subject to medical restrictions, but was laid off that December.

In May 2007, Salas received a recall notice from Sierra, offering to reinstate him if he obtained a release authorizing him to return to full-duty status.

Salas then sued Sierra, alleging it had failed to reasonably accommodate his disability, in violation of FEHA and in retaliation for having pursued his workers' compensation claim.

During the discovery process, Sierra learned that the Social Security number Salas had provided was being used by a North Carolina man.

Based on this "after-acquired" evidence, Sierra argued Salas had obtained his job under false pretenses, and that it would not have recalled or hired him in the first place if it had been aware he had provided counterfeit Social Security information in the application process.

San Joaquin County Superior Court Judge Elizabeth Humphreys granted summary judgment in favor of Sierra, and the 3rd DCA unanimously affirmed.

The appellate court determined Salas had used a false Social Security number since he had not refuted the evidence produced by Sierra that the number belonged to a different person. This, the court reasoned, entitled Sierra to judgment as a matter of law since Salas was not eligible to hire in the first place.

The California Supreme Court granted review of the decision last November and the case is pending briefing by the parties.

WorkCompCentral interviewed the lawyers on both sides of the case.

Salas' lawyers argue that the 3rd DCA decision would give unscrupulous employers the "perverse incentive" to hire undocumented workers, so they can "do whatever they wanted" and "later say, 'Oh, they're undocumented,' and get off scot-free for discrimination."

They argue that affirming the 3rd DCA decision would be "to the detriment of all workers," since it would create a "race to the bottom," among employers. "If you have a legally exploitable class," they argue, "it lowers the floor for everybody" as to what employer conduct workers will be willing to tolerate.

The defense argues that Salas "had every opportunity to tell the trial court that he had his own Social Security number and he didn't do it," so "it's reasonable to infer from that he didn't have his own Social Security number."

They said that after Salas was laid-off from Sierra, he began working at another job "that was as heavy" as his former full-duty position. Then, "when Sierra called him up, he didn't tell them, 'Oh by the way, I have another job,'" and thereafter complained "he didn't get offered modified duty."

So where do I stand?

I don't like fibbers. Bottom line. And the fact that Salas didn't tell anyone that his SSN wasn't his, early on in both the FEHA process and in the litigation, tells me that Salas isn't an honest person. If it is correct that he got another job in the meantime and failed to tell Sierra about that is another blight on the honesty-meter.

I don't like that.

He should not be rewarded for dishonesty.

In my opinion the Supreme Court is dealing with a case of dirty facts, and if they decide to render an opinion other than a blanket denial of review then the law on FEHA rights for undocumented workers is going to be messy.

It seems to me that if one can not legally work in the United States because of immigration status then the FEHA interactive process and modified work obligations are moot - to what purpose are these provisions if the person to whom they apply can not actually utilize the benefits?

Though I have a big nose, it is unfortunately not very sensitive to smell.

But the Salas case doesn't smell right to me. That says a lot.

At least regarding this one case, I guess I'm not that confused.