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Tarango v. State Industrial Insurance Co.6/13/2001
of his actual ability to undertake substitute employment given his physical limitations. If he is actually employable apart from his immigration status and despite his physical disability, I agree he is ineligible for retraining and rehabilitation under our workers' compensation laws. If re-employment is not feasible apart from his immigration status, he should be entitled to rehabilitation benefits because IRCA, in my view, does not per se preempt state laws allowing participation in the legal aspects of a rehabilitation program.
Legality of vocational rehabilitation benefits
The majority correctly observes that, under the priorities of NRS 616C.530, legal workers may not receive the benefits of a rehabilitation program if they can re-enter the workforce in one of the enumerated capacities. Accordingly, if Mr. Tarango would be re-employable but for his undocumented status, he would be ineligible as a matter of state law for retraining and rehabilitation. Thus, if Mr. Tarango is physically re-employable, his forced admission into a rehabilitation program provided under NRS 616C.530 would be mandated only because of his illegal status. This, as also noted by the majority, would be manifestly unfair. Certainly, what is illegal for a documented worker must be illegal for an undocumented worker. I therefore further agree that there is no impediment under the state or federal constitutions to his exclusion from a program under this alternative.
As noted below, however, the analysis of eligibility under state law changes if Mr. Tarango is not, in any event, able to pursue re-employment or substitute employment.
Preemption
The majority concludes that IRCA preempts the Nevada Industrial Insurance Act ("NIIA") merely because it may have an effect on aliens working in the State of Nevada. On the other hand, the majority observes that there is no indication that the SIIS is prohibited from or would be punished under IRCA for providing certain rehabilitation services to Mr. Tarango. While I agree with the second position taken by the majority, I disagree with the first and conclude that IRCA does not preempt the provisions of the NIIA that provide rehabilitation services, short of job placement, to an undocumented alien. Without preemption, there is no federal prohibition against Mr. Tarango's participation in a program that does not violate IRCA.
It is true that, under the Supremacy Clause of the United States Constitution, any state law in conflict with federal law must yield to the federal mandate. However, the United States Supreme Court has always exercised restraint and caution in determining whether a particular state law conflicts with federal law. Indeed, in Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., the Court stated that " re-emption of state law by federal statute or regulation is not favored 'in the absence of persuasive reasons -- either that the nature of the regulated subject matter permits no other conclusion or that the Congress has unmistakenly so ordained.'"
As discussed in De Canas v. Bica, the United States Supreme Court employs a three-part test to determine whether federal law must preempt state law. First, federal law preempts state law when a state purports to regulate an area exclusively reserved for the federal government. Second, federal law preempts state law if Congress has sought to occupy the field: that is, when Congress clearly intends to oust state authority to regulate that type of conduct, even if the state regulation is consistent with federal objectives. Third, federal law preempts state law if it "'stands as an obstacle to the accomplishment and execution of the ful
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