DE Supreme Court holds that undocumented worker status is relevant but not necessarily decisive factor in determining if claimant is actually displaced worker.

The court holds that a claimant’s undocumented worker status is not relevant in determining whether she is a prima facie displaced worker, but it is a relevant factor to be considered in determining whether she is actually a displaced worker. The impact of this holding means that undocumented worker status does not automatically make the claimant a prima facie displaced worker, which would in essence preclude any chance of a termination petition being successful. The applicable law provides that a claimant may qualify as a prima facie displaced worker if the degree of physical impairment coupled with other factors—such as the claimant’s age, education, occupational and general experience, emotional stability, the nature of the work performed—make the claimant not employable in any well known branch of the competitive labor market. If a claimant does not qualify as a prima facie displaced worker, she can nevertheless show that she is actually displaced by showing that reasonable, but unsuccessful, efforts were made to secure suitable employment. In either instance, the employer then has the burden of showing work is available to the claimant within her capabilities. The court set forth a blueprint for the type of evidence the employer needs to present. While the Board’s decision suggested that the employer must present evidence from specific employers who would be willing to hire an undocumented worker and have jobs within the claimant’s ability that are open, the court clarified that no such requirement exists. Rather, the court indicated that what is required of the employer on the burden of showing that jobs are actually available for an undocumented worker is proof that can include reliable market evidence that employment within the worker’s capabilities is available to undocumented workers.

_{Case Law Alerts, 2^nd Quarter, April 2017}

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