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By JOSHUA CLIFTON, a Chicago-based writer who covers workers' comp and disability issues

Republicans in two states now appear poised to introduce legislation to bar undocumented employees from collecting workers' compensation benefits.

Lawmakers in Montana's House of Representatives recently approved legislation--H.B. 71--that would prohibit illegals from collecting workers' comp benefits by changing the definition of employee to exclude undocumented individuals under the state's workers' comp act. (See the WorkersComp Forum article on Montana's illegal worker law here.)

Republicans in Georgia are taking a different approach through S.B. 7, which would disallow benefits for persons who cannot prove that they legal in the country at the time of the accident.

Rusty Watts, partner at Swift, Currie, McGhee & Hiers in Atlanta, said he is concerned the Georgia legislation may create an entirely new issue.

"The biggest problem with the legislation is the exclusive remedy doctrine," he said. "If individuals are excluded under the workers' compensation act, then they can sue in court. Essentially, what they are doing is opening the personal injury door by closing the workers' comp option."

Jeremiah K. Jarmin, attorney and managing member of Jarmin & Fain LLC in Atlanta, said lawmakers are missing the boat with the legislation by failing to address the underlying problem of employers who continue to hire illegal workers.

"This legislation is going in the wrong direction," he said. "The economic demand has created the need for cheap services and labor, so it doesn't matter what the legislation imposes. As long as businesses are willing to service that demand and supply it, it will continue to happen. We need to hit the problem where it is occurring--the employers who choose to hire these people."

COMMON-SENSE APPROACH

Watts said nearly all states that have challenged the right of illegals to collect workers' comp benefits have been overruled once the case reaches the courts. Last year, the District of Columbia Court of Appeals ruled that an illegal busboy who was injured on the job was still entitled to lost wage benefits, despite being terminated by his employer after it discovered his undocumented status.

Jarmin said a more commonsense approach would be to target employers who maintain unscrupulous hiring practices.

"For many of the states that introduce this type of legislation, it always seems the same--go after the person who was lured here, not the businesses that are doing the luring," he said. "What the legislature needs to do is to treat an employee, whether he is legal or not, like an employee. Then, employees will find out that there is no financial reason to hire undocumented workers."

But targeting employers, some of whom unknowingly hire illegal immigrants, can be a challenge.

"The responsibility of the employer is to ask whether an individual is legally permitted to work in this country on the 1099 form and to do your due diligence in inspecting the documents," Watts said. "Beyond that, they really can't do much. Employers are very much at the mercy of undocumented workers who provide false documents. The verification options are limited and some are not that effective."

Jarmin advocates putting a mechanism in place that would relay information to various state agencies if a claimant is discovered to be illegal after filing a workers' comp claim. Private employers, for example, could be required to use the same Web-based E-Verify system that government agencies use to determine the eligibility of a prospective new hire to work in the United States.

"I want to see the red flags come up that way so that employers are penalized and sanctioned for their illegal hiring practices," he said. "Ultimately, that is the only thing that is going to curb the behavior of businesses."

WHERE FROM HERE?

With a presidential election less than two years away, Watts said, the issue of undocumented workers won't be fading away anytime soon.

"It's good campaign rhetoric," he said. "It resonates with some voters, and I think you'll be hearing a lot more about the issue in the coming months, one way or another."

Building on the unsuccessful attempts in the past, Watts foresees more states getting creative with their legislation.

"I think the 'get it or not get it' issue has been decided by more than half the states," he said. "So what you'll likely see in the future are states that have allowed undocumented workers to collect benefits trying to limit them. Rather than cutting them out completely, we will see more discussions over more practical sub-issues."

For example, according to Watts, lawmakers may target light-duty work once an injured worker is able to come back to the job.

"You may see states that aim to cut off benefits for vocational rehabilitation because the person's inability to find a job on light duty will be because of his status, not because of the injury. Why should you have to pay to train someone for a job they can't take?"

The high unemployment rate, Jarmin said, will also likely keep the issue in the minds of voters.

"Those jobs that were once considered undesirable are now in demand because of high unemployment. In the end of the day, we need to start creating situations in which domestic workers have access to these jobs. Until that time, employers will still be hiring illegal immigrants to fill those jobs."

February 24, 2011

Copyright 2011© LRP Publications