DocketNumber： EAB 85-AB-1632; CA A38157
Citation Numbers： 744 P.2d 1304, 88 Or. App. 204
Judges： Buttler, Warren, Rossman
Filed Date： 11/12/1987
Status： Precedential
Modified Date： 10/19/2024
dissenting.
This is a close case with competing policy considerations. The majority opinion is strong and well-reasoned on the administrative law issue. However, because I agree with the weight of authority on this subject, I respectfully dissent.
The majority correctly states that neither ORS 657.155(1)(c) nor OAR 471-30-036(3) explicitly defines alien availability for work in terms of an Immigration and Naturalization Service (INS) authorization. However, I believe that the Division is correct that the term “available for work” implies legal availability for work. The statutory and regulatory standard for availability necessarily implies that employment not violate state law or federal regulations, and the Division need not issue such a rule. The legal availability requirement has application to more than aliens, of course. For example, ORS 653.320 bars children under age 14 from employment while school is in session. If ORS 657.155(1)(c) and OAR 471-30-036(3) do not contain a legal availability requirement, the Division must pay benefits to a child who has worked in violation of the statute.
Since November 7, 1986, it has been unlawful for an employer to hire an alien who is not authorized to work by the INS. 8 USC § 1324a, as amended by P.L. 99-603, Title I, Part A § 101(a)(1), 100 Stat 3360; see also 8 CFR 274a & b, as amended 52 FR 16216. Before then, it was illegal for many aliens present under color of law to be employed in this country. Federal law controlled whether certain classes of aliens could be employed at all and closely regulated what employment some classes of aliens could accept. See 8 CFR 109, 214.1(e)(1986). For example, an employed alien who entered on a non-immigrant visa under the classification of temporary presence for pleasure was present under color of law but working illegally. 8 CFR 214.1(e). ’
The majority correctly states one holding of Sure-Tan, Inc. v. NLRB, 467 US 883, 104 S Ct 2803, 81 L Ed 2d 732 (1984), that it was not illegal for an employer to hire undocumented aliens. However, the Supreme Court acknowledged that such employment could be illegal for the alien. The majority fails to recognize the significance of the distinction. In Sure-Tan, the employer reported undocumented alien employes to INS in retaliation for their participation in union activities. The employes were then deported. 467 US at 886-890. The court held that undocumented alien employes were protected by the National Labor Relations Act (NLRA) and that the employer’s retaliation was therefore unlawful.
A standard remedy for the constructive or actual discharge of an employee for union activity is reinstatement with back pay. The United States Court of Appeals saw problems with that remedy under the Sure-Tan facts, recognizing that the undocumented alien employees were “not lawfully available for employment.” The Court of Appeals awarded back pay anyway. 467 US at 890. The Supreme Court reversed the back pay award, stating:
“[T]he employees must be deemed ‘unavailable’ for work (and the accrual of back pay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States.” 467 US at 903.
The aliens in Sure-Tan were not lawfully available for work for purposes of back pay and reinstatement, and I believe that it would be irrational to hold that aliens who worked contrary to the terms of their visa or otherwise in violation of federal regulations are “available” for work under ORS 657.155(1)(c) and OAR 471-30-036(3).
WORK AUTHORIZATION
The question becomes, therefore, how to determine which aliens are legally available for work and which are not. I agree with the weight of authority, which holds that the presence or absence of INS work authorization resolves that question. Of the seven jurisdictions to consider the issue, five have held that aliens without work authorization are not “available” for work under their unemployment compensation laws. In a recent case, the Florida District Court of Appeals denied compensation to aliens who had worked under INS authorizations but whose authorizations were revoked after their applications for unemployment benefits. The court held that the aliens were no longer “able and available” for work. Alfred v. Florida Department of Labor, 487 So 2d 355 (Fla App 1986). California, Colorado, New Jersey, and New York have also held such aliens to be unavailable for work. Alonso v. State, 50 Cal App 3d 242, 123 Cal Rptr 536 (1975), cert den 425 US 903 (1976); Yatribi v. Industrial Commission of the State of Colorado, 700 P2d 929 (Colo App 1985); Duenas-Rodriguez v. Ind. Com’n., 199 Colo 95, 606 P2d 437 (1980); Lepiani v. Bd. of Rev.,
If the majority intends to imply that the Division may make no determination regarding legal availability at all, it would require payment of benefits to someone employed in violation of the law and encourage further violations by requiring a job search. That makes no sense. If the majority agrees that the term “available” means legal availability for work, I believe that when INS, as a matter of federal immigration and labor policy, declines to issue a work authorization, the aliens concerned are not legally available for work. For these reasons I dissent.