Ayala v. Unemployment Insurance Appeals Board

Opinion

ROTH, P. J.

Pursuant to respondent Ayala’s petition predicated upon undisputed facts, the superior court mandated California Unemployment Insurance Appeals Board (Board) (Unemp. Ins. Code, §§ 401-411)

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and Department of Employment (§ 301) (Department) to complete

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payments to him of insurance benefits in the amount of $1,898 under section 140.5 in accordance with an award which the Department had previously made. Board and Department

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appeal.

Ayala is an illegal alien residing in the United States without a work permit who was employed by the same employer from 1968 until laid off on February 18, 1972 because he was physically unable to work. (§ 2626.)

During his employment Ayala had made payments as defined by section 144 intended to compensate in part for the wage loss sustained by reason of sickness or injury. (§§ 2601, 2608-2611.) Within a few days after lay-off Ayala filed a claim. (§§ 2652 and 140.5.) Department accepted the claim; approved a total disability award to respondent of $1,898 to be paid in weekly installments of $73 and Department continued said, benefit payments between March 2, 1972 and May 25, 1972, for a total of $868.43. Department determined on or about the latter date that respondent had been residing in the country illegally without a work permit; did not qualify for disability benefits; payments were stopped and sought to recover the $868.43 previously paid.

Respondent appealed Department’s decision to a referee of Board. On October 5, 1974, after a hearing, the referee reversed Department’s decision and ruled that respondent was eligible. Department appealed the referee’s decision to Board and reversed the referee’s decision and held respondent liable to Department for the $868.43 it had previously paid. Ayala then petitioned the superior court for relief and that court mandated the'judgment appealed from.

Board urges that the judgment cannot stand because Ayala cannot under the law present a valid claim since any claim he makes is tainted by his status as an illegal resident without a work permit. Board argues, too, that since the United States government in title 8 of the United States Code imposes rigid requirements on aliens- and controls the circumstances under which they can work, California must heed the law and policy evidenced by said code in order to retain its eligibility to receive millions of dollars from the United States for benefit payments. In a two-pronged attack; Board asserts the claim is defective because (1) reading sections 1253 and 2602 indicates respondent is not available to work if called upon; and (2) Ayala’s claim is proscribed by the Wagner-Peyser Act (29 U.S.C. §§ 49-49(k)) a federal statute by which California is bound.