The topic of misrepresentation is back this week. It is not new to this blog. Readers may recall Brock is gone, is Hector next, in the Florida Court, or the U.S. Supreme? Or, perhaps the musings a few years later in Kansas Cannot Prosecute Identity Theft. The fact is that misrepresentation is a recurring topic as the world of workers' compensation, and the larger world of employment struggles with the seemingly simple requirement of telling the truth.
This week, the Florida First District Court rendered Hernandez v. Food Market Corp., Case No. 1D18-4406 (October 30, 2019). Certainly, this decision will be derided by some and praised by others. There is, after all, always room for some spirited debate and discussion. (Although some perceive spirited debate and even humor, or humorists, as under attack in modern America).
In Hernandez, the injured worker at trial was denied "entitlement to any workers’ compensation benefits due to her fraudulent provision of an invalid social security number (SSN)." The injured worker sought review by the First District, which affirmed in a written opinion. The Court explained that the injured worker is "an illegal alien without a valid SSN." After an injury at work, she was referred for medical care, as is normal in workers' compensation claims.
At the physician's office, she was asked to complete a variety of forms (we've all been there). One had a place for "an SSN" and "a statement that the 'claim could be denied if you do not provide the information.'” The injured worker therefore concluded that she might be denied care without such a number and so she "admitted that she entered an invalid SSN on the form."
This misrepresentation implicated Section 440.09(4)(a), Florida Statutes. The law "prohibits an employee from receiving workers’ compensation benefits if he or she" makes "fraudulent, false, or misleading statements" of any kind “for the purpose of securing workers’ compensation benefits.” The Court affirmed the Judge of Compensation Claims' conclusion that is what the injured worker did in providing an admittedly false response on the physician's forms.
The Court explained that the trial judge in such a situation faces a two-part analysis. First, the judge must decide "whether Claimant made or caused to be made false, fraudulent or misleading statements." The SSN provided was admittedly false, and thus it was appropriate to proceed to the second question: "whether the statement was intended by Claimant to be for the purpose of obtaining benefits.” (Citation omitted). The testimony established that the false information was inserted specifically because the worker sought care and believed it would be denied without such representation.
The Claimant argued that the State of Florida cannot find misrepresentation in this context as state law is preempted by federal law. This was the argument appropriated by the Kansas Supreme Court in State v. Garcia, 401 P.3d 588 (Kan. 2017), discussed in Kansas Cannot Prosecute Identity Theft. The Court explained that the situations in Garcia and the cases that were cited therein are distinguishable from the facts in Hernandez. There, state laws made applying for work and stealing identity criminal for "illegal aliens."
The Court explained that federal precedent holds “that any information employees submit (in the employment process) to indicate their work status ‘may not be used’ for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct.” As a result, state laws that prohibit fraud and deceit in obtaining employment seemingly cannot stand. States are apparently not permitted to prosecute fraud and deceit in this specific context because there is a federal law that prohibits that behavior, whether anyone in the federal government chooses to enforce those laws or not.
However, in Hernandez, the Court noted that the injured worker did not prove that the false SSN provided to the medical provider "was ever previously provided" in the process of obtaining employment (where it is O.K., or at least ignored when misrepresentations are made). The SSN in Hernandez was provided in the process of seeking workers' compensation benefits. The Court rejected the worker's contention that such misrepresentation should nonetheless be ignored "because her provision of a false SSN 'implicates and touches upon her immigration status.'” This argument is essentially that any false statement that can be tied in any way to someone seeking employment should thereafter be immune from action under state law regardless of the context in which that misrepresentation is furthered or repeated.
The Court reminded that Florida's workers' compensation laws apply to everyone equally (without specific mention of the Constitutional guarantees of "equal protection" found in the Fourteenth Amendment: "deny to any person within its jurisdiction the equal protection of the laws."). It is perhaps axiomatic that everyone should be treated equally under the law. However, there are those who perceive that the law periodically treats people differently. It appears that in Kansas it is permissible for the state to prosecute identity theft except when it is committed by those who have insulated themselves from state law by first appropriating those identities in the initial hiring process condoned by federal law.
There is hope that the United States Supreme Court may eventually provide guidance to the states in this context. There is disagreement as to whether information provided in the employment process is thereby forever insulated from state law criminal penalty in its use, merely because it was also once used in the employment process. But, in Hernandez, the Court concluded that providing a false SSN was actionable under state law because the injured worker did not claim or prove that the "invalid SSN" she admittedly used "to obtain employment" was in fact the same false information she later used to obtain medical care for her injury. To create the protection of preemption, it seems, the key may be to prove consistency and pervasiveness in the misrepresentation.
The Supreme Court of the United States (SCOTUS) may ultimately adopt the broadest interpretation of the preemption argument: that submission of misrepresentation in the employment process immunizes any future use of those same misrepresentations from state law prosecution. That is essentially what Kansas' court concluded. SCOTUS may ultimately agree with the Kansas Supreme Court that states cannot criminalize identity theft by undocumented aliens as they do for American citizens and legal immigrants. However, the Hernandez court concluded that for such subsequent misrepresentations to be shielded by preemption, there must be evidence that ties them to previous misrepresentations in the employment process.
