Today I bring you what Walt Schmittinger affectionately calls “Act 2 of what I presume will be a 3 Act play.” It is the appeal decision in the Guardado case that we have all been waiting for. For the back story, check my blog entry of 4/10/15 titled “Everybody Loves Pedro….”, a little ditty which is about as entertaining as a root canal if you are a defense attorney. The case at the Board level is Magdalena Guardado v. Roos Foods and it does two things: (1) creates a special class of displacement for undocumented workers, and (2) establishes as a matter of law that a traditional labor market survey cannot be used to demonstrate the requisite burden of proof of job availability since the jobs identified are, of course, not available to illegals.
Yesterday the Superior Court affirmed the Board’s decision in Guardado. An appeal to the Delaware Supreme Court is inevitable. Check out Roos Foods v Magdalena Guardado Superior CT DE, CA No. S1A-05-002-ESB (January 26, 2016).
Now in fairness, a closer examination of Judge Bradley’s decision is in order. He broke the IAB ruling down into three propositions:
• That Ms. Guardado was medically employable – the IAB so ruled and this aspect of the case was undisputed.
• That Ms. Guardado was a displaced worker – this premise was based on 7 factors and not solely on her undocumented status (factors of age, being unskilled, illiterate as to written or spoken English, being limited to the use of one hand, level of education, length of time in the workplace prior to injury, and finally being an illegal alien). As stated by the Judge, “There is no doubt that Guardado, with her capabilities and limitations, is going to have a very difficult time finding a job.”
• That the labor market survey relied upon by the employer was not a valid showing of available employment.
Of note, the Superior Court in Guardado took much the same approach as our Supreme Court in Campos v. Daisy Construction, 107 A. 3d 570, 572 (Del.2014), specifically that federal laws prohibit hiring undocumented workers and that the difficulty of showing job availability following a work accident is “appropriately borne by the employer who must take the employee as it hired her.” Bottom line, if you want to avoid this behemoth of an obstacle in the pursuit of a Termination Petition, check immigration status before offering that job.
I did not solicit comments from the attorneys involved in this matter, given that an appeal is anticipated. For my part, I won’t be eating refried beans any time soon.
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