Carillo v. Employment Division

744 P.2d 1304, 88 Or. App. 204

• Court: Court of Appeals of Oregon
• Decided: November 12, 1987
• Docket: EAB 85-AB-1632; CA A38157
• Status: Published

Opinions

BUTTLER, P. J.

Petitioner seeks judicial review of a final order of the Employment Appeals Board determining that she is not entitled to unemployment benefits because she does not have an immigrant visa or work authorization from the Immigration and Naturalization Service (INS) and is, therefore, “unavailable” for work. We reverse.

Petitioner entered the United States from Mexico in 1975. She did not have any type of visa. She was employed in Hermiston by the J.R. Simplot Company from June, 1978, until June, 1984, when she was discharged, pursuant to a new company policy, because she could not provide proof of INS work authorization. She had applied for work authorization in 1982, but INS had told her that she was subject to deportation. INS has yet to make a final determination of her status.

The Employment Division (Division) denied petitioner benefits on the ground that her failure to provide work authorization constituted misconduct under ORS 657.176(2)(a). After a hearing, the referee ruled that her failure to provide work authorization was not misconduct and allowed benefits. The Division then denied benefits on the basis that petitioner was “unavailable” for work within the meaning of ORS 657.155(1)(c), which provides:

“(1) An unemployed individual shall be eligible to receive benefits with respect to any week only if the assistant director finds that:

ÍÍ* * * * *

“(c) The individual is able to work, is available for work, and is actively seeking and unable to obtain suitable work.”

The referee again reversed, determining that petitioner was available for work. EAB reversed the referee, holding that, as a matter of law, petitioner could not be available for work within the meaning of ORS 657.155(1)(c). EAB stated that “[t]he vagaries of the claimant’s labor market area and the investigation made into the job possibilities in the labor market area could not change the outcome of this case.” The Board noted that “we are loathe to hold that an illegal worker should be allowed unemployment insurance benefits.”

The statutory phrase “available for work,” ORS 657.155(l)(c), is defined in OAR 471-30-036(3):

“For the purposes of determining whether or not an individual is available for work under the provisions of ORS 657.155(l)(c), the Administrator shall require at a minimum that the individual

“(a) Be willing to work full time during all of the usual hours and days of the week customary for the work being sought pursuant to section (1) of this rule.

“(b) Be reasonably accessible to any suitable work opportunities within the labor market in which work is being sought pursuant to section (1) of this rule, including any temporary work opportunities that are otherwise suitable unless such temporary work will bar or interfere with return to the individual’s regular employment.

“(c) Has not imposed conditions which substantially reduce the individual’s labor market attachment.

“(d) Be in the normal labor market (as established under section (5) of this rule) every day of the customary work week for the type of work being sought pursuant to section 1 of this rule, unless the individual is actively seeking work elsewhere. However, absence from the normal labor market due to an infrequent circumstance, other than work search, for less than the major portion of the customary work week, shall not result in a finding that the individual is unavailable for work for the week.”

That definition does not contain a requirement that immigrants have INS work authorizations before they may be considered to be available for work, thereby making them eligible for unemployment benefits. The only alienage-based restriction on unemployment benefits is found in ORS 657.184:

“Benefits shall not be paid on the basis of services performed by an alien unless such alien is an individual who has been lawfully admitted to the United States for permanent residence or to perform such services, or otherwise is permanently residing in the United States under color of law, including an alien who is lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) or section 212(d) (5) of the Immigration and Nationality Act.”

The Division concedes that petitioner is in the country “under color of law.” See Gillar v. Employment Division, 300 Or 672, 717 P2d 131 (1986).

At the time of petitioner’s claim, there were no federal laws prohibiting the employment of undocumented aliens.¹ Congress had not made it a criminal offense for an alien to accept employment after entering this country illegally. The United States Supreme Court has pointed out that, at the relevant time, the only federal rules regarding employment of aliens were those promulgated by INS under its authority to control immigration:

“For whatever reason, Congress has not adopted provisions in the INA making it unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization. While it is unlawful to ‘concea[l], harbo[r], or shiel[d] from detection’ any alien not lawfully entitled to enter or reside in the United States, see 8 USC § 1324(a)(3), an explicit proviso to the statute explains that ‘employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.’ Ibid. See De Canas v. Bica, supra, at 360, and n 9. Moreover, Congress has not made it a separate criminal offense for an alien to accept employment after entering this country illegally. See 119 Cong Rec 14184 (1973) (remarks of Rep. Dennis). Since the employment relationship between an employer and an undocumented alien is hence not illegal under the INA, there is no reason to conclude that application of the NLRA to employment practices affecting such aliens would necessarily conflict with the terms of the INA.” Sure-Tan, Inc. v. NLRB, 467 US 883, 892, 104 S Ct 2803, 81 L Ed 2d 732 (1984).

Although it was not “illegal” for an undocumented alien to work or for an employer to hire one, the INS rules subjected an alien to deportation for failure to abide by the terms of a visa or, of course, for not having a visa. 8 USC § 1251(a)(9) (1986); 8 CFR § 109.1, § 214.1(e) (1986).

Under Oregon law, there is only one situation, concededly not present here, in which it is unlawful to hire an undocumented worker: Farm labor contractors are forbidden from knowingly employing an alien “not legally present or legally employable in the United States.” ORS 658.440(2)(d). Otherwise, employers are free to hire undocumented workers who are permanently residing in this county under color of law, and those workers are not subject to any criminal sanction for accepting employment.

The Division argues that the lack of criminal sanctions relating to the employment of undocumented aliens is irrelevant. It urges that the fact that the aliens lack temporary work authorizations from the INS makes them unavailable. Some states have taken that position.² Petitioner, on the other hand, argues that INS authorization is irrelevant to her availability for work. She points to the fact that she had been able in the past to obtain a job without having authorization and that she was again employed at the time of her hearing. She argues that she is “available for work” if she satisfies the criteria of OAR 471-30-036(3).

We agree with petitioner. In essence, EAB has defined “available” for aliens to mean “having INS work authorization.” The Division has the authority to define availability, Doctor v. Employment Division, 76 Or App 650, 711 P2d 159 (1985), rev den 300 Or 704 (1986), and has done so in OAR 471-30-036, supra. Although EAB purported to be applying that rule, in doing so, it rewrote it or attempted to write a new rule through adjudication. EAB may make procedural rules for the conduct of its own proceedings, ORS 657.685(7), but it has no substantive rulemaking authority. Trebesch v. Employment Division, 300 Or 264, 710 P2d 136 (1985). EAB did more than make merely procedural rules here. It adopted a substantive policy that affects a certain group’s access to benefits. In doing so, it exceeded its authority and thereby applied an erroneous rule of law.

Reversed and remanded for reconsideration.

1 On November 6, 1986, the Immigration Reform and Control Act of 1986, Pub L No. 99-603, was signed into law. The act makes it unlawful for employers to hire undocumented aliens, but it does not apply to aliens who were hired before the act became law.

2 Alonso v. State, 50 Cal App 3d 242, 123 Cal Rptr 536 (1975), cert den 424 US 903 (1976); Duenas-Rodriguez v. Industrial Com’n., 199 Colo 95, 606 P2d 437 (1980); Alfred v. Fla. Dept. of Labor & Employ. Sec., 487 So 2d 355 (Fla App 1986); Lepiani v. Bd. of R., Dept. of Labor and Indus., 169 NJ Super 72, 404 A2d 318 (1979); Zapata v. Levine, 50 App Div 2d 681, 375 NYS2d 424 (1975). But see Vespremi v. Giles, 68 Ohio App 2d 91, 427 NE2d 30 (1980).