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Tarango v. State Industrial Insurance Co.6/13/2001
hat would constitute illegal misconduct under IRCA. Rather, the NIIA primarily alters a worker's ability to sue his employer in tort in exchange for "no-fault" employment benefits. Under NIIA, " he employee forfeits his common-law right to sue his employer for negligence, while the employer gives up most common-law defenses." The purpose of this statutory construct is to efficiently provide compensation to workers for injuries suffered as the result of their employment. Absent a workers' compensation scheme, an undocumented worker, like a documented one, could sue his employer in a common law tort action. His immigration status would be no bar to such a suit. By simply replacing the employee's negligence cause of action with the workers' compensation scheme, Nevada does not encourage illegal immigration; instead, it merely provides a vehicle to compensate for workplace injuries. Thus, the NIIA does not stand as an obstacle to the accomplishment and execution of the purposes and objectives of IRCA.
The NIIA provides the following options to the workers' compensation insurer: (1) return the employee to his original position; (2) return the employee to the original position in a modified role; (3) return the employee to employment with another employer in order to make use of his existing skills; (4) provide formal retraining while he works in another profession; and (5) provide formal training or education for a new vocational endeavor.
I agree that substitute employment under the NIIA rehabilitation scheme would violate IRCA. However, as the majority seemingly agrees, the SIIS need not violate IRCA under the facts of this case. Because Mr. Tarango's prior job requires more vigorous work than his permanent disability permits, he is eligible for vocational retraining under Nevada law if he is otherwise not medically eligible for re-employment or substitute employment. Vocational retraining does not entail job placement or referral of an undocumented worker for a fee. Providing a pure rehabilitation program to someone injured while in the service of a domestic employer does not per se violate the act and, certainly, the Immigration and Naturalization Service can deport him at any time.
Thus, I disagree that Mr. Tarango is absolutely barred from eligibility. If he is medically ineligible for re-employment because of the nature of his work-related injuries, he should be eligible to participate in a legal rehabilitation program if the department of immigration would let him do so. Again, however, if found to be re-employable on a substitute basis or otherwise, Mr. Tarango is precluded from participation in any rehabilitation program legally unavailable to legal workers.
I would therefore hold that IRCA does not preempt the NIIA. If IRCA does not preempt the NIIA in this instance, there is no federal impediment preventing the SIIS from awarding rehabilitation benefits short of placement in the workforce. Hence, I would reverse and remand this matter with instructions for the district court to order the SIIS to reconsider Mr. Tarango's request for vocational retraining.
I also would not reach the issue of whether granting vocational retraining benefits to Mr. Tarango violates some unknown, documented worker's equal protection rights because that hypothetical worker is not a represented party before this court in this matter.
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