Delaware: Employer Must Show Available Work Within Worker’s Limitations, Including Worker’s Undocumented Status

Evidence supported the Board’s finding that an employee was a displaced worker where, following surgery on her left wrist, the worker had been released to light-duty, one-handed work but, because of limited education, inability to speak English and a limited employment-life, she could not find employment. The employer contended the real reason she could not find work was the fact that she was undocumented and could not, therefore, legally work in the United States. The court indicated that even without her undocumented status, the evidence supported the Board’s finding that the worker had shown she fit into the prima facie displaced category. The burden, therefore, shifted to the employer to show that she was qualified, within her restrictions, of performing employment in any well-known branch of the competitive labor market. Citing Campos v. Daisy Construction Company, 107 A.3d 570, 572 (Del. 2014), the court noted that the employer must take the employee as it finds her. The court added that the Board properly found that the employer could not carry its burden to show that work was available to someone with the worker’s qualifications and limitations where the employer’s own witness could not testify that there was any work available for in injured worker in light of her undocumented status.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Roos Foods v. Guardado, 2016 Del. Super. LEXIS 37 (Jan. 26, 2016) [2016 Del. Super. LEXIS 37 (Jan. 26, 2016)]

See generally Larson’s Workers’ Compensation Law, § 66.03 [66.03]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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