Feliz Navidad y Prospero Año & Greetings from the Supreme Court
I am back. And you are likely thinking “it’s about time.”
Yes, I have been sidelined for the last 8 months by a sweet little ditty that I fondly refer to as “the cardiac event.” Slowed me down, but it didn’t kill me, praise God, and I am back with a vengeance. Blog has been silent too long. Someone needs to speak up and stir the pot.
So to herald my return, a case of epic proportions. As you all likely know (unless you’ve been living under a rock), the Supremes decided the Guardado v. Roos Foods, (Del. Supr. Ct. Nov. 29, 2016) case a few weeks ago. The case had the potential to create a new class of displaced worker. To render a work accident the wage loss motherlode for the “No habla Ingles” population.
First, let me say that I share in the pleasure and pride of my colleagues at Elzufon Austin & Mondell at the remarkable outcome obtained through their efforts. This decision in Roos Foods is a testament to their skilled advocacy (this means you, Andy Carmine, Elissa Greenberg, and Gary Baker). Frankly, pretty much everyone in town thought this case would be affirmed, or otherwise disposed of by the Court in a manner that would be unfavorable, if not punitive, where employers are concerned.
Huge victory finding that illegals (undocumented workers) are not prima facie displaced.
Huge victory as well in ruling that an employer does not need to produce a labor market survey of jobs that would require testimony of illegal/illicit hiring practices but can instead introduce this “reliable market evidence that employment within the worker’s capabilities is available to undocumented workers”.
Now all that said, and not disrespecting any of the benefit achieved by the defense in this case, I will feel better when I see this played out a few times. Why?
From the Supreme Court’s mouth to the Board’s ears—one really has to keep an open mind as to what the Board will do with this pronouncement in terms of practical application. The good news is that the IAB decisions are written by law-trained hearing officers who will hopefully exercise their due diligence to put legal theory into practical application.
Illegal alien status is still a factor in the rebuttal of the displaced worker allegation. And a pesky one at that.
Thirdly, this “reliable market evidence” of jobs realistically available to illegals. How is that testimony going to play out if someone has a significant injury and sedentary limitations? Obviously there is going to be an “education curve” as to those trades and vocations that typically draw from our illegal population—but the concern is that those jobs consist very specifically of vocations such as: landscaping, dry-wall, roofing, food service- and I harbor concerns that there is a paucity of sedentary jobs out there and will hold that concern until enlightened otherwise. And will the term “reliable market evidence” itself be subject to debate as to exactly what that means. It is certainly going to put the onus on these vocational rehab/labor market experts to do their jobs in a manner that has not been done before (and are they up to it?)
So that is my spin on the outcome of this case. Again, huge props to Scott Mondell and his team for working what many consider a near-miracle.
So I would normally sign off “irreverently yours.” But having literally come back from the dead, I don’t think I will ever regard anything with irreverence again. That is so not where I am at in this phase of life, cherished life . . . . So all I will say is “it’s a beautiful day to be alive.”
Warmest holiday regards!
Cassandra Roberts
