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IN THE

MINNESOTA COURT OF APPEALS

Case No. A-15-1183

ANIBAL SANCHEZ,
Plaintiff-Appellee,
v.
DAHLKE TRAILER SALES, INC.
Defendant-Respondent and Cross-Appellant.

ON APPEAL FROM
THE DISTRICT COURT OF MINNESOTA
FOR THE TENTH JUDICIAL DISTRICT

RESPONDENT/CROSS-APPELLANTS BRIEF

ATTORNEY FOR APPELLANT


MADIA LAW LLC
Joshua A. Newville, MN No. 395221
333 Washington Ave. N., #345
Minneapolis, MN 55401
Phone: 612-349-2743
Email: joshuanewville@madialaw.com
ATTORNEY FOR RESPONDENT/CROSS-APPELLANT
DRAWE & MALAND
Todd L. Nissen, MN No. 25017X
7701 France Ave., #240
Edina, MN 55435
Phone: 952-841-2145
Email: todd.nissen@zurichna.com
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TABLE OF CONTENTS
STATEMENT OF AUTHORITIES.. 3
STATEMENT OF THE ISSUES ................................................................................... 4
STATEMENT OF THE CASE ...................................................................................... 6
STATEMENT OF FACTS............................................................................................. 6
SUMMARY OF ARGUMENT ..................................................................................... 9
ARGUMENT ............................................................................................................... 10
I. DAHLKE DID NOT VIOLATE MINNESOTA STATUTE 176.82 SUBD. 1
WHEN IT PLACED MR. SANCHEZ ON LEAVE. ......................................... 10
II. MR. SANCHEZ CANNOT MAINTAIN A CAUSE OF ACTION UNDER
MINNESOTA STATUTE 176.82 FOR REFUSING TO CONTINUE TO
ACTIVELY EMPLOY HIM IN VIOLATION OF FEDERAL LAW............... 17
CONCLUSION ............................................................................................................ 20

TABLE OF AUTHORITIES

Cases

Bergeson v. U.S. Fidelity and Guaranty Co., 414 N.W.2d 724, 727 (Minn. 1987) . . 13
Correa v. Waymouth Farms, Inc., 664 N.W.2d 324 (Minn. 2003)........................ 18, 19
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973) ........................................................................................................................ 10
Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S.Ct. 2466, L.Ed2d 607 (2013) ..... 17
Randall v. Northern Milk Products, Inc., 519 N.W.2d 456 (Minn.App. 1994) ........... 10
Rivas v. Car Wash Partners ................................................................................... 14, 19
Schatz v. Interfaith Care Ctr., 811 N.W.2d 643, 649 (Minn. 2012) ............................ 12
Sleiter v. Am. Family Mut. Ins. Co., 868 N.W.2d 21, 24 (Minn. 2015) ....................... 13
Other
8 C.F.R. 274a.3............................................................................................................. 18
8 C.F.R. 274a.10.. 18
8 U.S.C. 1324a(a)(1) and (2) ........................................................................................ 18
8 U.S.C. 1324a(f)(2012) ......................................................................................... 18, 19
8 U.S.C. 1324a(e)(4). ............................................................................................. 18, 19
8 U.S.C. 1324a(e)(5) .............................................................................................. 18, 19
Immigration Reform and Control Act (IRCA) 274A(a) et seq. . ................................. 19
Minnesota Statute 176.82...2, 3, 4, 9, 10, 11, 12, 13, 14, 17, 19, 20
Minn. Stat. 645.16 (2012) ............................................................................................ 12
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STATEMENT OF THE ISSUES


ISSUE 1.

Can an illegal/undocumented worker show a violation of the


Minnesota Workers Compensation anti-retaliation statute when
his employer, after paying his workers compensation benefits,
placed him on leave until he can show he can legally work in the
United States?

ISSUE 2:

Can Appellant, an illegal/undocumented worker, maintain a cause


of action against his employer pursuant to Minnesota Statute
176.82 for refusing to continue to actively employ him in
violation of federal law?

How the issues were raised in the District Court:


Via Dahlkes Motion for Summary Judgment; Dahlkes Second Motion for
Summary Judgment; and Dahlkes Motion for Reconsideration.
Concise statement of the District Courts ruling:
ISSUE 1:

The District Court concluded Dahlke did not take an adverse


employment action against Mr. Sanchez in violation of Minnesota
Statute 176.82 by placing him on unpaid leave until he can
provide proper documentation establishing his right to work
legally in the United States.

ISSUE 2:

The District Court concluded Dahlke did not violate Minnesota


Statute 176.82 by placing Mr. Sanchez on unpaid leave as
required by federal law until he can provide proper documentation
establishing his right to work legally in the United States.

How the issue was preserved for appeal:


By appeal from the District Courts summary judgment rulings entered on
October 17, 2014 and June 22, 2015.
Most apposite authorities:
ISSUE 1:

Minnesota Statute 176.82.

ISSUE 2:

8 U.S.C. 1324A et seq.


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Immigration & Nationality Act 274A(a) et seq.


8 C.F.R. 274a.3.

STATEMENT OF THE CASE


The Honorable Lawrence Johnson, District Court Judge of the Tenth Judicial
District granted Respondents motion for summary judgment dismissing Appellants
workers compensation retaliation claim. Appellant seeks review of the dismissal.
Respondent cross-appealed to ensure all of the issues are before this Court.
STATEMENT OF FACTS
Mr. Sanchez arrived in the United States in December 1998. (Nissen Affidavit,
Feb. 20, 2015, attaching Sanchez depo. p. 17). Mr. Sanchez is currently an illegal
alien. Id. at 37-38. Despite living here continuously for the past 16 years, Mr.
Sanchez has never applied with the United States government for proper
documentation allowing him to work legally. Id. at 18.
Mr. Sanchez has a social security number that he bought from somebody out
and about. Id. Mr. Sanchez got the invalid social security number so he could work.
Id. at 28. Mr. Sanchez furnished his false social security number to employers hoping
they would conclude he could legally work in the United States. Id. at 49-50; 53.
In early 2005, Dahlke decided to hire a body shop assistant. Dahlke Affidavit.
It contacted a local technical school to inquire about hiring one of its students. Id.
The school recommended Mr. Sanchez. Id.
When Mr. Sanchez applied to work at Dahlke, he did not tell them he was
unable to work legally in the United States. (Nissen Affidavit, Feb. 20, 2015,
attaching Sanchez depo. p. 64). Mr. Sanchez supplied Dahlke with his false social
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security number. Id. at 65. He also supplied a copy of his Minnesota Drivers license.
Dahlke Affidavit. In order to get hired by Dahlke, Mr. Sanchez represented he could
work legally in the United States. (Nissen Affidavit, Feb. 20, 2015, attaching Sanchez
depo. p. 67).
On September 23, 2013, Mr. Sanchez injured himself while operating a
sandblaster at work. Dahlke Affidavit. Dahlke drove Mr. Sanchez to the hospital and
filed a workers compensation claim with its insurer for him on September 25, 2013.
Monroe Affidavit; Plaintiffs Memo. in Opp. to S.J. Ex 5 Sanchez depo. pp. 152-153.
After the accident, Mr. Sanchez missed some work. (Nissen Affidavit, Feb. 20,
2015, attaching Sanchez depo. p. 118). Although Mr. Sanchez eventually went back
to work, he was anxious to receive the workers compensation checks for the time he
missed. Id. He contacted the insurer and was told he must first send the bills for his
treatment before they could process the disability request. Id. Mr. Sanchez did not
know if the insurer was providing accurate information so he retained a lawyer. Id.
Mr. Sanchez, through his legal counsel, filed a workers compensation claim
petition on November 6, 2013. Dahlke Affidavit. The insurer retained defense
counsel and adjusted the claim. Id. The insurer paid Mr. Sanchez workers
compensation benefits. Id. As part of the workers compensation proceeding, Mr.
Sanchez provided a sworn deposition on December 11, 2013, in which he admitted he
could not legally work in the United States. Id.

Mr. Dahlke and Mr. Smithers, both part owners of the business, later
confronted Mr. Sanchez with his deposition transcript. Id. Mr. Sanchez stated he did
not lie during his deposition. Id. Mr. Sanchez told Mr. Smithers to do what you
have to do at the conclusion of the brief meeting. Id.
Mr. Dahlke and Ms. Monroe, the company bookkeeper, met with Mr. Sanchez.
Id. They showed Mr. Sanchez copies of the documentation he previously provided
and asked if the documents were legitimate. Id. Mr. Sanchez pointed to the social
security card and said it was not good. Id. Mr. Dahlke asked Mr. Sanchez if he had
legitimate paperwork that he could supply. Id. Mr. Sanchez replied no. Id.
Dahlke decided to send Mr. Sanchez home (on unpaid leave) until he could
furnish the proper documentation. Id. On December 20, 2013, Mr. Sanchez signed a
letter acknowledging Dahlke placed him on unpaid leave. (Nissen Affidavit, Feb. 20,
2015 attaching Sanchez depo. p. 132). The document states:
Because you voluntarily told us that the social security card documentation you
provided us was not good and that you were not eligible to work in the United
States at this time, we are sending you home on an unpaid leave of absence.
Once you provide us with legitimate paperwork showing that you can legally
work in the United States, you can come back to work at Dahlke Trailer Sales.
Dahlke Affidavit Ex. A.
Mr. Sanchez returned to the shop during the last week of December to pick up
his tools. Id. This was the last time Mr. Sanchez appeared at the company. Id.
Mr. Sanchez settled his workers compensation claim and received his
payments. (Nissen Affidavit, Feb. 20, 2015, attaching Sanchez depo. p. 119). Mr.

Sanchez does not have any information to suggest that Dahlke interfered with his
application for workers compensation benefits. Id. at 122. Mr. Sanchez brought this
lawsuit because Dahlke placed him on leave. Id. at 141-142.
SUMMARY OF ARGUMENT
Mr. Sanchez asserts Dahlke violated Minnesota Statute 176.82 by placing him
on leave until he could furnish legitimate documentation showing he can work legally
in the United States. However, the clear wording of the statute only prohibits an
employer from discharging an employee, threatening to discharge an employee, or
intentionally obstructing an employee from seeking workers compensation benefits.
The uncontroverted facts show Dahlke did not violate the statutory prohibitions.
Dahlke did not discharge, threaten to discharge or obstruct Mr. Sanchez from seeking
workers compensation benefits. Mr. Sanchezs invitation to this Court to ignore the
statutes express language and substitute his own definition of what constitutes an
adverse employment action under this statute should be rejected.
Mr. Sanchez sued Dahlke for refusing to violate federal law. Federal law
subjects employers who knowingly hire, or continue to knowingly employ an
unauthorized worker, to hefty fines and penalties. Dahlke did not retaliate against Mr.
Sanchez for filing a workers compensation claim. It had no choice under federal law
but to place him on leave. Mr. Sanchezs (unsuccessful) effort to establish a violation
of Minnesota Statute 176.82 is irrelevant in the face of federal legal requirements. If

Minnesota law runs contrary to the federal mandates, the state law is invalid under the
Supremacy Clause of the Constitution.
Mr. Sanchez has obtained employment by using false documentation. Mr.
Sanchez is an undocumented illegal alien. Mr. Sanchez does not have a legal right in
a job he never should have obtained in the first place.
ARGUMENT
I.

DAHLKE DID NOT VIOLATE MINNESOTA STATUTE 176.82


SUBD. 1 WHEN IT PLACED MR. SANCHEZ ON LEAVE.
In order to recover under Minnesota Statute 176.82 subd. 1, Mr. Sanchez must

prove Dahlke violated its provisions. The statute does not apply to all arguable
adverse employment actions. Rather the statute, by its express terms, is much
narrower. Minnesota Statute 176.82 prohibits an employer from discharging,
threatening to discharge or obstructing an employee from seeking workers
compensation benefits. Dahlke did not violate the statute.
In Minnesota, courts analyze workers' compensation retaliation claims under
the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973). See Randall v. Northern Milk Products, Inc., 519 N.W.2d
456 (Minn.App. 1994). A Plaintiff must first make a prima facie showing of
retaliation; the defendant must then articulate a legitimate reason for the discharge;
finally, the plaintiff must establish that the reason is pretextual. Id. at 459. In order to
establish a prima facie case, Mr. Sanchez must show all of the following: (1) he

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engaged in a protected activity, (2) his employer subjected him to an adverse


employment action under the terms of the statute on which he is basing his claim, and
(3) a causal connection between the two.
Dahlke does not dispute Mr. Sanchez engaged in a protected activity under
Minn. Stat. 176.82 by seeking workers compensation benefits. However, Mr.
Sanchez cannot show he was subjected to an adverse employment action under the
statute (prong 2). Mr. Sanchez also conceded he cannot establish a causal connection
between the workers compensation claim and the alleged statutory violation (prong
3).
A. Mr. Sanchez cannot establish the second prong of his prima facie case.
Mr. Sanchez cannot establish a prima facie case of retaliation because he was
not subjected to an adverse employment action as defined by the statute. Minnesota
Statute 176.82 prohibits an employer from discharging, threatening to discharge, or
intentionally obstructing an employee from seeking workers compensation benefits.
Dahlke did not violate any of these provisions when it placed him on leave until he
can show he has a legal right to work in the United States.
1. Dahlke Did Not Discharge Mr. Sanchez.
Mr. Sanchez admits Dahlke did not terminate him, but rather placed him on
unpaid leave (Nissen Affidavit, Feb. 20, 2015, attaching Sanchez depo. p. 130-132;
Appellants Brief p. 19). Mr. Sanchez admitted he commenced this lawsuit because
Dahlke placed him on leave. Id. at 141-142. Mr. Sanchez signed a form
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acknowledging he was placed on unpaid leave because of his undocumented status.


Dahlke Affidavit Ex. A. Mr. Sanchez understands that if he provides Dahlke with
legitimate paperwork, he can start actively working for them again. (Nissen Affidavit,
Feb. 20, 2015, attaching Sanchez depo. p. 133-134). In other words, Mr. Sanchez still
has a job to go back to. Dahlke Affidavit Ex. A. He need not reapply, interview
again, and hope Dahlke considers him to be the strongest candidate. Id. Mr. Sanchez
just needs to obtain the proper documentation to work in the United States. Id.
This Court should reject Appellants attempt to rewrite and significantly
broaden the express provisions of Minnesota Statute 176.82. Mr. Sanchezs desire for
an unpaid leave to constitute a violation of the statute and therefore qualify as an
adverse employment action is irrelevant. The express provisions of Minnesota
Statute 176.82 were passed by the legislature and signed into law by the governor. An
alleged violation of the workers compensation statute is not a civil rights case (or a
whistleblower case where the statute contains its own unique prohibitions and factors
giving rise to a cause of action). Even if it were, importing language from other
statutes, in derogation of the Minnesota Statute 176.82s express language, is not
logical, as Appellant suggests. (Appellants Brief p. 18). Such an approach would
violate the Constitutions separation of powers and this Courts mandate.1

When

interpreting a statute, the Courts goal is to ascertain and effectuate the intention of
the legislature. Minn. Stat. 645.16 (2012). When a statute is clear and unambiguous, the
Courts task is limited to construing the words of the statute according to their plain and
ordinary meaning. Schatz v. Interfaith Care Ctr., 811 N.W.2d 643, 649 (Minn. 2012).
When the words of the law are clear, the plain meaning controls and will not be disregarded
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2. Dahlke Did Not Threaten to Discharge Mr. Sanchez for Filing a


Workers Compensation Claim.
There is nothing in the record showing Mr. Sanchez was threatened with
termination if he filed a workers compensation claim. In fact, Dahlke drove Mr.
Sanchez to the hospital and filed the workers compensation claim with its insurer on
his behalf. Monroe Affidavit; Dahlke Affidavit; Sanchez depo. pp. 152-153.
3. Dahlke Did Not Intentionally Obstruct Mr. Sanchez From Seeking
Workers Compensation Benefits.
Mr. Sanchez concedes he does not have any evidence that Dahlke obstructed
him from seeking workers compensation benefits. (Nissen Affidavit, Feb. 20, 2015,
attaching Sanchez depo. p. 122). Again, Dahlke filed Mr. Sanchezs workers
compensation claim for him. Monroe Affidavit; Dahlke Affidavit.
Appellants apparent request to rewrite, expand, and soften what constitutes an
actionable adverse employment action under the intentional obstruction portion of
Minnesota Statute 176.82 (to include actions which might dissuade a worker from
seeking benefits), runs afoul of the Minnesota Supreme Courts decision in Bergeson
v. U.S. Fidelity and Guaranty Co., 414 N.W.2d 724, 727 (Minn. 1987). In Bergeson,
the Court explicitly stated,
We conclude, therefore, that a cause of action under section 176.82 lies where a
person, such as an insurer, obstructs or hinders, whether by deliberate action or
inaction, the receipt of benefits due the injured worker and does so in a manner

under the pretext of pursuing the spirit of the law. Sleiter v. Am. Family Mut. Ins. Co., 868
N.W.2d 21, 24 (Minn. 2015).
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that is outrageous and extreme, or, to put it another way, in a matter which is
egregiously cruel or venal. We hold, further, that this conduct must be proven
by evidence that is clear and convincing. Id. at 727.
Simply put, the Minnesota Supreme Court set a very high threshold for what
conduct constitutes a violation of the statute which is flatly contrary to the
significantly lesser threshold Appellant would prefer this Court adopt.
Based on these undisputed facts, the District Court made a legal determination
that Dalhkes decision did not constitute an adverse employment action under
Minnesota Statute 176.82. SANCHEZ ADD006.
The District Courts decision was further bolstered by the fact Dahlkes actions
were in keeping with actions taken by the employer in Rivas v. Car Wash Partners,
which the Minnesota Workers Compensation Court of Appeals upheld. The District
Court noted:
In Rivas, an undocumented worker was injured on the job. The car wash
placed the worker on leave after discovering that the worker did not have
documentation to work in the United States. The car wash told the employee
that he could return to active duty once he provided proof he could legally work
in the United States. The court noted that employers cannot legally employ
unauthorized aliens, therefore, it was not only reasonable, but in keeping with
policies underlying the IRCA, for the employer to have conditioned its offer to
return the employee to active duty on proof of the employees eligibility to
work in the United States. (Sanchez ADD005).
B. Mr. Sanchez cannot establish the third prong of his prima facie case.
As part of his prima facie case, Mr. Sanchez must also establish a causal
connection between his seeking workers compensation benefits and the alleged
statutory violation. Mr. Sanchez cannot satisfy this requirement either. Dahlke did
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not retaliate against Mr. Sanchez for seeking workers compensation benefits.
Moreover, Mr. Sanchez conceded he was placed on leave because of his
illegal/undocumented status, not because he chose to seek workers compensation
benefits.
Dahlke was required by federal law to send Mr. Sanchez home (on unpaid
leave) until he could furnish the proper documentation. (See Section II below). Since
Dahlke did not have any choice but to place Mr. Sanchez on leave, it makes no
difference whether it was upset with him or not. Either way the result is the same, Mr.
Sanchez could not continue active employment
In addition, Mr. Sanchez has no proof that Dahlke disapproved of his workers
compensation claim (which it filed on his behalf). Mr. Sanchezs assertion that Mr.
Smithers was upset by his decision to hire any attorney months after the claim was
filed is irrelevant. (Nissen Affidavit, Feb. 20, 2015, attaching Sanchez depo. p. 151,
153). The statute protects employees from retaliation for seeking benefits, not for
hiring an attorney months later, particularly when the employee gets his benefits and
there is no evidence the employer attempted to obstruct them.
Moreover, Mr. Sanchez previously injured himself on the job at Dahlke.
Monroe Affidavit. Mr. Sanchez sought and received workers compensation benefits.
Id. Mr. Sanchez does not claim Dahlke retaliated against him for filing that workers
compensation claim. (Nissen Affidavit, Feb. 20, 2015, attaching Sanchez depo. p.
106).
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Finally, Mr. Sanchez conceded during his deposition he was placed on leave
due to his illegal/undocumented status and not his workers compensation claim. On
December 20, 2013, Mr. Sanchez signed a letter acknowledging Dahlke placed him
on unpaid leave. (Nissen Affidavit, Feb. 20, 2015, attaching Sanchez depo. p. 132).
The document states:
Because you voluntarily told us that the social security card documentation you
provided us was not good and that you were not eligible to work in the United
States at this time, we are sending you home on an unpaid leave of absence.
Once you provide us with legitimate paperwork showing that you can legally
work in the United States, you can come back to work at Dahlke Trailer Sales.
On January 3, 2014, Mr. Sanchez informed his workers compensation
rehabilitation consultant, Kristen Engelke, that he was no longer working for Dahlke
for reasons unrelated to his work comp injury. Id. at 143. Mr. Sanchez testified he
told Ms. Engelke the truth. Id. at 142. It was a true statement. Id. at 144.
Mr. Sanchez also told the workers compensation medical doctor in January
2014, that he had not worked since the date of his (September 2013) accident because
he did not have appropriate legal documentation with respect to working in this
country. Id. at 147. Mr. Sanchez provided one additional explanation for why he had
not worked for the prior four months. Id. His leg was not well. Id.
Based on the undisputed facts, the District Court correctly held, Even though
Plaintiffs leave from Dahlke happened during the pendency of his workers
compensation benefit litigation, there is no dispute of material fact that the reason

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Plaintiff is no longer working at Dahlke is because he cannot legally do so under


federal immigration law. Sanchez ADD006.
II.

MR. SANCHEZ CANNOT MAINTAIN A CAUSE OF ACTION


UNDER MINNESOTA STATUTE 176.82 FOR REFUSING TO
CONTINUE TO ACTIVELY EMPLOY HIM IN VIOLATION OF
FEDERAL LAW.
Mr. Sanchez is suing Dahlke for placing him on leave. Mr. Sanchez is an

illegal/undocumented immigrant. Mr. Sanchez does not have a legal right to


continued active duty employment in a job he never should have had the job in the
first place. Moreover, federal law prohibits employers from knowingly hiring, or
continuing to knowingly employ undocumented workers. Any Minnesota law that
purports to require an employer to violate federal law by continuing to actively
employ an illegal alien is unenforceable. In the unlikely event the Court concludes
Dahlke violated Minnesota Statute 176.82, Mr. Sanchezs claim is preempted by
federal law.
The Constitutions Supremacy Clause provides that the laws and treaties of the
United States shall be the supreme law of the land, anything in the laws of any State to
the contrary notwithstanding. U.S. Constitution Article VI, cl. 2. Accordingly, it has
long been settled that state laws that conflict with federal law have no effect. Mutual
Pharmaceutical Co., Inc. v. Bartlett, 133 S.Ct. 2466, L.Ed2d 607 (2013). Even in the
absence of an express pre-emption provision, the Court has found state law to be

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impliedly pre-empted where it is impossible for a private party to comply with both
the state and federal requirements. Id.
Mr. Sanchez alleges state law prohibited Dahlke from placing him on leave
despite the fact he could not document his right to work in the United States. If
Dahlke complied with Mr. Sanchez (incorrect) reading of the state law, it would
violate federal law. (See 8 U.S.C 1324a(e)(4), 1324a(a)(1), and (2), 1324a(e)(5),
1324a(f), and Immigration & Nationality Act 274(a) et seq., 8 C.F.R. 274a.3 and 8
C.F.R. 274a.10 making it illegal to employ illegal aliens and providing employers
who knowingly employ unauthorized aliens are subject to civil and criminal
sanctions). Therefore, if Mr. Sanchez has correctly interpreted the requirements of
Minnesota law (which he has not), the Minnesota law is null under the Supremacy
Clause.
Mr. Sanchezs continued reliance on Correa v. Waymouth Farms, Inc., 664
N.W.2d 324 (Minn. 2003) is misplaced. The District Court correctly analyzed that
decision in its Order granting Dahlkes motion for summary judgment. The District
Court recognized there was no conflict between the federal and state law in that case.
In Correa, the plaintiff, an undocumented worker, was injured on the job.
Waymouth Farms terminated plaintiff after learning of his illegal status and
attempted to avoid paying him temporary total disability benefits workers
compensation benefits. The plaintiff did not challenge his termination. He did
not argue the employer had a continuing obligation to actively employ him.
The Minnesota Supreme Court held that the Minnesota Workers
Compensation act allowed the award of temporary total disability benefits to
the employee, and nothing in the federal Immigration Reform and Control Act
(IRCA) specifically prohibited it. Id. at 330. The Correa Court did not hold
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that employers must continue to employ undocumented workers after they are
injured on the job. The IRCA does specifically prohibit employers from
knowingly employing unauthorized aliens. See 8 U.S.C. 1324a(e)(4),
1324a(e)(5), and 1324a(f)(2012). Sanchez ADD005.
Appellant incorrectly argues that it would be paradoxical to conclude that
undocumented workers are entitled to workers compensation benefits but are not
entitled to the anti-reprisal protections of that statute. (Appellants Brief p. 12). First,
Appellants argument is irrelevant because Dahlke did not violate the anti-reprisal
protections of that statute. (See Section I above). Second, Appellant chooses to
ignore the federal law as well as the holdings in Correa and Rivas. The reason
undocumented workers are entitled to certain workers compensation benefits, such as
medical expenses, is because those workers are covered by the Minnesota Workers
Compensation Act and to award such benefits would not violate federal law. In sharp
contrast, requiring employers to continue to actively employ undocumented workers
would violate federal law.
Appellant incorrectly argues that if illegal or undocumented workers who are
placed on leave until they obtain the required documentation are not able to sue under
Minnesota Statute 176.82, would incentivize employers to hire undocumented
workers and retaliate against them. (Appellants Brief p. 15). Appellants
argument ignores the fact federal law subjects employers who violate IRCA to hefty
fines and penalties. Therefore, it is not necessary to create a new cause of action for

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illegal and undocumented aliens who are placed on leave until they have proper
documentation in order to address Appellants concerns.
Finally, appellant attempts to reconcile IRCA with Minnesota Statute 176.82 by
claiming IRCAs prohibitions apply only at the moment the employer discovers an
employee is undocumented. However, Appellant does not cite any authority to back
up its odd conclusion. IRCA prohibits not only the hiring of undocumented workers,
but continuing to actively employ them. Therefore, the employer is not excused from
IRCAs requirements after discovering it was duped and defrauded by an illegal
worker. The fact IRCA contains a continuing obligation for employers who violate
the law to bring themselves into compliance, topples Appellants unsupported position
that the application of the laws are somehow staggered.
CONCLUSION
Appellants case fails for two independent and dispositive reasons. First,
Dahlke did not violate the provisions of Minnesota Statute 176.82. Second, even if
the Court should conclude to the contrary, Minnesota Statute 176.82 is pre-empted by
federal law under the facts of this case. As a result, Respondent/Cross-Appellant

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respectfully requests that the Court affirm the lower courts award of summary
judgment.
DRAWE & MALAND

Dated: December 15, 2015


Todd L. Nissen, MN No. 25017X
Attorney for Respondent
7701 France Avenue, Suite 240
Edina, MN 55435
Phone: (952) 841-2145
Email: todd.nissen@zurichna.com

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