RU-94 Job Offers and Undocumented Workers

Sunday, June 22, 2003 | 0

Can a carrier/employer modify the DWC Form RU-94 to indicate that an employee must provide proof of employability before starting a modified or alternative position?

I have recently received several inquiries on this subject. You may recall that the Rehabilitation Unit was going to include such a statement on the RU-94 but it decided against this change based on advice from the Office of Administrative Law. Employers/insurers are thus still unsure how they can resolve the potential conflict between federal law that prohibits an offer of work to a known undocumented worker and the Rehabilitation Unit's requirement for proof that an employer has modified/alternative work it would offer, but for the employee's undocumented status.

I would strongly recommend against modifying the RU-94 in any way: modifying the form could have the effect of rendering it invalid. The solution is to include the information regarding documentation of legal work status in the cover letter you send with the RU-94 (the one that explains the job duties, wages, recognition of work restrictions, etc.).

While it is true that an employer cannot offer a job to a known undocumented worker, it is also true that every job offer is conditional ￯﾿ﾢ￯ﾾﾀ￯ﾾﾓ proof of legal work status is required of every employee hired by any employer. Since it is possible that the employee's work status has changed, the employer can advise the employee that work is available if s/he has obtained the appropriate documentation. Your cover letter might therefore include language such as the following:

"The position indicated on the attached DWC Form RU-94 is available to you if you have obtained documents showing your right to work legally in the U.S. and you provide copies of those documents to your employer within the next 30 days."

NOTE: This language should only go on letters to claimants who were known to be undocumented; it should not go on the letter simply because the employee has a particular surname. Employees who have previously provided valid documents to their employer do not need to do so again when returning to work in a modified or alternative capacity.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859 mailto:allanleno@leno-assoc.com.