Burden of proof of work availability is met when the evidence shows a prevalence of undocumented workers employed in jobs listed on Labor Market Survey.

The Delaware Supreme Court remanded this case so the employer could present additional evidence of whether it could meet the burden of showing that jobs were actually available to the claimant, an undocumented worker. Evidence was presented on the issues of the claimant’s displaced worker status, the updated Labor Market Survey and job availability for undocumented workers.

The Board accepted the Labor Market Survey evidence, concluding that it provided reliable and sufficient information regarding actual jobs available within the claimant’s capabilities. They did note that the vocational consultant had not advised the prospective employers of the claimant’s undocumented status, but it would have been unrealistic to expect any prospective employers to admit that they illegally hire undocumented workers. However, the Board went on to note that Dr. Toohey’s (an Assistant Professor of Economics at the University of Delaware) testimony shows that thousands of jobs were available to undocumented workers within the occupations and industries listed in the Labor Market Survey. The Board concluded that the employer provided reliable and relevant evidence of the prevalence of undocumented workers in the specific occupations and industries listed in the Labor Market Survey. Therefore, the Board found that the employer was successful in showing the appropriate nexus between the actual jobs available in the Labor Market Survey and the prevalence of undocumented workers in those job categories in Delaware. They ruled that the employer had successfully rebutted the claimant’s evidence that she is a prima facie worker by presenting evidence of the availability of jobs within her capabilities. The Board ordered that the claimant’s total disability benefits be terminated. Based on the earning capacity as documented in the Labor Market Survey as exceeding the claimant’s pre-injury average weekly wage, they also ruled that the claimant was not entitled to any partial disability benefits.

^{Case Law Alerts, 4th Quarter, October 2017}

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