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By STEVE TUCKEY, who has written on insurance issues for a decade for several national media outlets

The May 12, 2008, raid at an Iowa meatpacking plant that rounded up 389 illegal immigrants, with some barely in their teens, underscored not only the harsh working conditions undocumented workers face but also the crazy quilt patchwork of state and federal officials that operate in separate labor and immigration silos.

Jon Coppelman, principal with the Boston-based consulting firm of Lynch Ryan, says, "Comp is a state issue, but illegal immigration is a federal issue. And I don't see the feds wanting to get involved on the comp side."

At first, state and federal labor officials, according to press reports, said the Iowa raid by immigration officials disrupted their own probes into alleged abuses by the employer.

Both documented and undocumented workers presumably were impacted by the labor abuse and immigration officials would in all likelihood also be concerned about issues such as harsh working conditions that went beyond immigration status.

Immigration status remains just one of the new pieces of the workers' compensation puzzle, with the rise of foreign languag-speaking workers and their impact on workplace safety another.

The issues will only rise in complexity as the influx of foreign workers continues its expected sharp turn upward.

According to the Bureau of Labor Statistics, immigrants now make up 12 percent of the active U.S. workforce, or 15.7 million workers, and are at the largest such percentage of U.S. workers in 70 years.

As a percentage of the workforce, immigrant workers increased 17 percent over the past three years. Immigrants provide a critical component in both the upper end of the workforce in areas such as finance and technology and the low end in agriculture and the hospitality industries.

Nonetheless, there are some indications that at least the undocumented portion of those newcomers to the United States is on the decline. The Washington, D.C.-based Center for Immigration Studies (generally seen as anti-immigrant) reported in August 2008 that the number of illegal immigrants declined by 1.3 million, or 11 percent, during the past year and now stands at about 11.2 million, compared with 12.5 million in August of 2007.

The center attributed the decline to both the slowing economy and increased enforcement measures implemented over the past year. But the still increasing number of legal immigrants might indicate that increased enforcement is the more likely influencing factor.

Regardless of the exact number of illegal immigrants, the determination of which is more of an art than a science, as unemployment rises, so too will tensions surrounding immigration. That tension will involve in particular the strains illegal immigration puts on the workers' compensation system.

Not all immigrants are undocumented. But enough are that they are presenting tough issues for employers, insurers, and state and federal regulators looking to ensure that all workers get the protection they need from workplace injuries.

Coppelman said the workers' comp system is really not designed to handle such concerns.

"No comp law has contemplated this issue, because it has only come up in the past five or 10 years," he says.

Powerful and contradictory forces are in play."On the one hand, fearing deportation, illegal workers may prefer to be paid in cash and are unlikely to focus on their entitlement to workers' comp until they are injured or laid off," Coppelman says.

But on the other hand, courts have ruled that even undocumented workers are entitled to workers' compensation benefits, he says.

A recent ruling that slanted conversely came from the New York State Court of Appeals in July. That ruling denied Ronnie Ramroop's claim for vocational rehabilitation benefits.

Ramroop, an illegal immigrant, suffered severe injuries when his hand was caught in a printing press. Workers' compensation coverage paid the medical bills, along with indemnity for lost wages, for five years following the 1995 incident.

In 2000, vocational rehab officials in the state of New York denied Ramroop's claim for training, reasoning that his inability to work was caused not only by his injury but also by his undocumented status.

The highest court in New York upheld the denial on a 5-1 vote.It said that it was not the legislature's intent to "restore to reemployment" a worker who cannot be lawfully employed.

"As the court put it, Ronnie's appeal puts into clear focus the tension between the statute's (vocational) rehab objective to return an injured worker to the marketplace and the reemployment of a worker who is not allowed to work," Coppelman says.

Some states are toying with the idea of curtailing comp benefits for undocumented workers. "This would be the final step in the creation of a truly third-class workforce with substandard, working conditions, wages and protections," Coppelman says.

Another case highlighting contradictions in immigrant workers' comp took place in Rhode Island in 2006 when an undocumented worker was cut by a chainsaw while working for a tree service that did not carry comp coverage. When he showed up at court to make his case for coverage, immigration officials arrested him for being in the country without a visa. The owner of the tree service denied tipping off the feds.

The worker made a sympathetic figure and members of the community rallied to get him a temporary visa so he could return to the United States and obtain a $30,000 settlement.

The owner is not a sympathetic figure, and indications are that he will not live up to the settlement agreement. But comments around the case indicate a frustration over the perception that both sides were acting illegally.

Coppelman says the case underscores the propensity for unscrupulous employers to get away with evading the burden of carrying workers' comp coverage by hiring illegal immigrants. The Rhode Island case also raises conflicting emotions similar to those invoked by the once red-hot issue of drivers' licenses for illegal immigrants.

Moving beyond the immigration status issue, the rising number of foreign workers presents other challenges.

According to the Morbidity and Mortality Weekly Report, which was released in June 2008 by the Atlanta-based U.S. Centers for Disease Control, Hispanic workers experienced higher work-related death rates than other workers.

The report said that, in 2006, the work-related injury-death rate for Hispanic workers was 5.0 per 100,000, versus 4.0 per 100,000 for all workers. During the 2003-06 period, the work-related injury-death rate for foreign-born Hispanic workers was 5.9 per 100,000, compared with a rate of 3.5 per 100,000 for U.S.-born Hispanic workers.

The Working Immigrants blog posited several reasons for such a trend, including the fact that that nearly a third of Hispanic construction workers have been here less than three years, while the same percentage speaks Spanish only.

"In addition, Hispanic workers have been switching from agricultural work to construction, for higher pay and to avoid having to travel to the harvests," the CDC report noted. "Some bring to construction an independent mindset. That might work when it comes to working on the farm. But it is not so desirable when it comes to construction."

Language, of course, remains one of the main challenges in implementing an effective worker safety program, when much of the group does not speak English.

According to Melissa Burkhart, a director of Futuro Solido, a Denver-based service that provides Spanish language translation, interpretation and training for companies, employers have to keep certain cultural factors in mind when providing safety programs involving Hispanic workers.

"Employers frequently forget, or perhaps they were never aware, that most of their Spanish speaking employees are accustomed to living with a level of danger and risk that most Americans would find uncomfortable," she says.

Some even consider Americans "a bit wimpy and unmanly and perhaps eager to put off reasons for finding work."

Employers may attempt to bridge the cultural gap by relying on bilingual personnel, which can save money but with a risk.

"The employee in question may hold the same erroneous beliefs as the audience, or the participants may not consider him or her enough of an authority," she says.

Burkhart says Spanish-speaking employees and their bosses in the United States may approach any number of issues from unique perspectives.

"For example, a Spanish-speaking employee may believe you are a valuable employee if you get the job done fast, while in the United States, the emphasis is getting the job done right," she says.

In addition, Spanish-speaking employees may tend to take a more cynical view of the corruptibility of government inspectors and not realize that, in the United States, heavy fines are often imposed on employers for noncompliance with the law.

Some reports indicate that immigrant workers are more reluctant to file claims for injuries at work.

The New Hampshire Coalition for Occupational Safety and Health reports that often times costs that belong rightly in the workers' comp system end up in the private system where they do not belong, or on the public rolls in the cases of those workers unable to afford coverage.

The New Hampshire group cites estimates that, in California, only 63 percent of injuries in the workplace suffered by immigrants get properly reported.

Among the reasons cited is lack of emergency medical treatment materials in the worker's native language and immigrants' unfamiliarity with the workers' compensation system in general.

But the study notes that the New Hampshire Department of Labor "has stated clear policy that immigrant and refugee workers, even undocumented workers, are fully entitled to workers' compensation medical benefits."

October 1, 2008

Copyright 2008© LRP Publications