The DWC has now issued yet another set of proposed voucher regulations.
Since the end of 2012 the DWC has been operating under emergency voucher regulations, which were recently readopted. The Division is currently on its 3rd 15 day comment period for the regs. A link to these can be found at the bottom of this post.
E-blasts in recent weeks from Jesse Ceniceros of Voters Injured at Work (VIAW) have highlighted concerns over those regs. It appears now that Ceniceros’ concerns are being addressed.
Ceniceros asks whether as federal immigration law reform advances, “will California step back?”
According to Ceniceros, the voucher regulation that had been proposed until the 3rd comment period draft “betrays California workers, and immigrant labor in particular.”
Ceniceros argued that “Regulation #10133.34(b)(4) is a back-door method of writing discrimination into state law. It would give the state’s blessing to exploitation by some employers who “discover” discrepancies in a worker’s documentation only at the time of an injury. It would bar benefits based on immigration status. It would begin a downward spiral of immigration-related restrictions in California.”
The concern was over proposed Reg 8 CCR 10133.34 (b)(4) which included language that “when the employer offers regular, modified or alternative work to the employee that meets the conditions of this section and subsequently learns that the employee cannot lawfully perform regular, modified or alternative work, the employer is not required to provide the regular, modified or alternative work.”
Immigrants here illegally are eligible for California workers’ comp, but the rule under the pre SB 863 law (as discussed in Del Taco v. WCAB (2000) 65 CCC 342) was that an injured worker was not entitled to vocational rehab benefits where inability to return to work was solely due to their immigration status.
In Cubedo V. Leemar Enterprises, Inc.; Benchmark Insurance
(ADJ7014822) (Panel Decision August 2011), a WCAB panel reversed a finding of TTD status where an undocumented worker had been offered modified work in an offer that contained the following language: “Please note that this offer of modified duty is contingent upon your completion of a new I-9, and your employer’s verification of that document.”
There may be other California panel cases that deal with this issue of which I am not aware.
Obviously the whole immigration system is in play as part of the immigration law debate now raging in Congress.
Like it or not, it seems likely that for any compromise bill to pass there will be an expanded E-Verify or some other employment verification/enforcement mechanism.
Indeed, it seems that a final bill might include language that makes the legalization process contingent upon a functioning E-Verify program.
This could put migrant rights advocates and civil liberties opponents of E-Verify in a very difficult spot: sue to attack or enjoin E-Verify and halt the legalization process of millions.
But it’s clear that the Brown administration is taking a step back, choosing not to enshrine immigration policy in workers’ comp voucher regs. The current version of 8 CCR 10133.34 under consideration proposes to drop the (b)(4) language noted above.
That’s probably a wise choice by Brown’s people as the politics of this issue play out in Washington.
Stay tuned.
The various versions of the SJDB regs can be found here:
http://www.dir.ca.gov/DWC/DWCPropRegs/S … B_Regs.htm
A discussion of Cubedo can be found here:
http://www.mulfil.com/pdf/CubedovBenchmark.pdf
Julius Young
510.835.8870