Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

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Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby hkcolby@msn.com on Fri Apr 24, 2009 9:46 am

My client was offered employment by her ER after being declared P&S. The problem is that she is not legally allowed to work in the U.S. and ER knows that. In fact, they terminated her while she was TTD because of her status. Now they want to invoke the 15 percent reduction by offering her a job that they will not actually give to her because of her status.

Does this invalidate the offer?

thanks in advance for all responses.

HKC
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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby jpod on Fri Apr 24, 2009 10:01 am

I agree with your indignation. Have your cleint accept the job anyway and then there is no basis for them to take the 15%.

I would be curious to see what Immigration would do with such information.

Now I know you can not extort ( or shopuld not, of course you can), but the employer is playing a dangerous game here. In order to get the redcution they have to make an offer. And, if they made an offer to hire someone who is illegally in the country, without obtaining all of the necessary paperwork, then isn't that a violation of immigration laws, to which they are making an admission, and providing a paper trail of same?

I think you have a solid point that it is not a good faith offer b/c how can one offer something that can not legally exist, or if it does exist it is an illegal act? Has anything really been offerred other that typed words on a piece of paper that carry no meaning? I can offer to sell you the moon, but can I perform on that promise?

One of the requirements under that section of labor code is the job has to last 12 months so just how does the employer intend to meet that hurdle?
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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby steelmanlaw on Fri Apr 24, 2009 12:00 pm

I don't see a statutory basis for the argument that employer must act in good faith under your facts; and as WC benes are a statutory creature, we must look at the law for rights and remedies. (However, § 5813 could be applicable but only on issues at the Board level, though you do not appear to be there yet, in your scenario.)

So, while we are on the subject of right and wrong, are we saying that only the employer has the obligation to act in good faith anyway? It could be that employer would be violating federal law (though not my area of specialty) if the offer were to be made whether or not in good faith. So, there would be the "duh" factor operating against making the offer; these actions don't occur in a vacuum and exclusive remedy won't shield employer or employee from federal law violations. I think employer should not make the offer, and carrier should proceed on the basis that the statute precludes the 15% deduction, and that because applicant's violation of the law is partly the reason why no deduction can be taken, he cannot be rewarded with the increase. However, this puts us "outside the statute" and thus concepts of fairness and equity should at least be considered. How about the concept of coming into court with clean hands when seeking equity? This should apply equally to employee and employer in this case.

Of course, this discussion is based on limited facts and limited thereto.

However, I don't see it being speciously argued that applicant is entitled to the increase, so I won't go there further.
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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby jpod on Fri Apr 24, 2009 12:24 pm

Steelman:

I should have been clear I do not think the statutory increase is warranted either. As Steelman suggests the neutral PD rate appears to be the equiatable solution and it also dove tails with the public policy behind encouraging return to work by offerring a carrot and a stick. But if the parties are precluded by Federal law from following through with the state mnadated public policy then equitable considerationsseem to dictate that no one "profits" from the windfall.
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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby chirple on Sat Apr 25, 2009 7:29 am

If the employer offers the regular/modified/alternative work contingent on the employee providing proof of a legal right to work, and the employer does have the position offered available, I beleive the 15% reduction should apply.

It is then up to the employee to obtain a legal right to work, or suffer the 15% decrease.
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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby TC on Sun May 03, 2009 12:51 pm

In the comment charts to 8 CCR sections 10001 - 10005, 10133.53, and 10133.55 (filed with OAL Jun. 9, 2006), this situation was repeatedly addressed. There were parties who advocated that injured workers, who were illegal aliens, should not be subject to 4658(d) PD rate adjustment. But the DWC repeatedly indicated:

Labor Code § 1171.5 requires that an undocumented worker be treated the same as any other injured worker. These regulations neither require nor permit employment prohibited by federal law.

Labor Code § 4658(d)(2) simply requires that permanent disability payments be increased by 15% where an employer with 50 or more employees does not make an offer to the employee, and requires that disability payments be decreased by 15% where an employer of any size does make an offer.

The Labor Code provides no authority to create any regulatory exceptions to this plain statutory mandate.

Nonetheless, based on the Del Taco case [(2000) 79 Cal.App.4th 1437], Labor Code § 1171.5 and the federal Immigration and Control Act, the DWC agreed that the applicability of the permanent disability adjustment regarding undocumented workers should be clarified in the regulations. This led to the addition of subdivision (f) to section 10002 in order to clarify the applicability of permanent disability adjustment to undocumented workers.

8 CCR section 10002, subdivision (f) states:

(f) 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.

If an employer (with more then 50 employees) makes an offer of reg/mod/alt work to injured worker, even if injured worker is an illegal aliens, then this will result in a minus 15% PD rate adjustment. If the employer subsequently learns the employee cannot lawfully perform the offered work, then the employer is not required to provide the regular, modified or alternate work. Albeit the origin of this regulatory modification was illegal aliens, it arguably is also applicable to other situations, e.g. inmate claims.
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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby hkcolby@msn.com on Thu May 14, 2009 7:10 am

TC: Thanks for that informative response. There is a factual distinction from the section you quoted regarding illegal aliens. That is, in this case the employer knew before they made the offer that they could not/would not take the employee back without proof of legal status. That is why I asked the question about whether or not the offer had to be in good faith. It seems to me that the equities here require that there be no increase or decrease. After all, the employer had employed my client as well as numerous other illegals long before the injury led to all of them being terminated.

thanks again to you and the others for the responses.

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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby TC on Thu May 14, 2009 12:49 pm

IF the parties have good faith disputes about the application of Labor Code 4658(d), e.g., whether the employer has 50+ employee, whether the offer of re/mod/alt work was made timely, etc, THEN the parties can settle at a "split" in the Stipulations with Request for Award by checking the "Not Applicable" box in paragraph 3, and indicate in paragraph 9 that there is a good faith dispute re the appliability of 4658(d).
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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby hkcolby@msn.com on Thu May 14, 2009 2:38 pm

I realize I can settle by compromise, I was more interested in opinions re whether or not a judge would allow the reduction in PD or not, given the facts as they are.
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Re: Must L.C. 4658(d)(2) Offer be in Good Faith? (California)

Postby TC on Wed May 20, 2009 6:46 pm

That is a question for the trier of facts.
If this case went to trial, I suspect:
the employer representative would testify s/he did not know the applicant was an illegal allien until after the injury or until after the employer made the offer of reg/mod/alt work;
and
the applicant would testify the employer always knew s/he was an illegal allien.
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