Delaware Employer’s Inability to Rehire Undocumented Worker Following Injury is Its Worry, Not the Worker’s

Observing that the employee must must be taken as he or she was hired, that in determining an employee’s “earning power” following an injury, Delaware courts are authorized to consider other relevant factors in addition to those that are related to the claimant’s injury, including the claimant’s age, education, general background, occupational and general experience, the Supreme Court of Delaware, in Campos v. Daisey Constr. Co., 2014 Del. LEXIS 543 (Nov. 13, 2014) recently held that a claimant’s undocumented status was an additional factor that could be considered. Accordingly, where federal law prevented the injured worker from accepting a new position with the employer following his injury, the employer could not terminate workers’ compensation benefits on the grounds that it had offered to rehire him. The court disagreed that the employer’s offer of a job to the claimant constituted sufficient proof of job availability. Consistent with federal law, it could only hire the claimant if the claimant could present authorization to work, which he cannot do. The record thus established that a job at the employer was not in fact available to the claimant, who does not have a valid social security card. Thus, the employer’s offer to re-hire him was not a bona fide offer.

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