Raising Debate Beyond Borders: Pt. 2
It can be argued that providing workers' compensation benefits to undocumented workers rewards, instead of punishes, the injured workers. As I explained in my last column, however, without workers' compensation's exclusive remedy provision, employers are left unprotected from lawsuits charging them with negligence and an unsafe workplace. By making workers' compensation benefits available, due to the exclusive remedy, civil lawsuits are avoided or minimized.
What's more, by denying benefits to undocumented workers, it encourages dishonest employers to hire illegal immigrants because they could avoid the cost of workers' compensation claims. In the event that the employer has a loss-sensitive program, this could be a considerable savings.
Allowing employers to avoid paying benefits to these undocumented workers could also undermine the goal of encouraging employers to create and maintain a workplace that is safe for all workers. A safe workplace with employees covered by workers' compensation is the right of every employee.
Injured workers--all injured workers--are entitled to disability benefits. If you hire someone, whether you know or don't know they are undocumented, employers have a moral obligation to provide benefits for legitimately injured employees. By baring workers' compensation benefits from undocumented workers, the state governments would be giving employers permission to willingly hire illegal workers. You can't bar them morally or legally
CASES TO CONSIDER
Luis Coque, an undocumented immigrant, was hired as a construction worker in New York. He was standing on a scaffold when an 80-pound bundle of shingles fell through the skylight above him, causing him to fall 25 feet to the basement floor. Coque is now a paraplegic.
Even though Coque provided false identification, a New York
Appellate Division court cited prior case law in Rosa v. Partners in Process and increased his award against his employer, Wildflower Estates Developers, from $2.61 million to $6.8 million for past pain and suffering, future medical expenses, and future pain and suffering. The court viewed the employer's violation of the New York Scaffold Law (which applies strict liability for worker injuries resulting from a worker falling from some height or a falling object striking a worker) a finable violation--regardless of the recipient of the benefits.
In the cited case, Rosa v. Partners in Process, the New Hampshire Supreme Court ruled in 2005 that an employer could be liable to undocumented workers for lost wages if the employer "knew or should have known of (the employee's) status, yet hired or continued to employ him nonetheless," and if the employer did not "reasonably rely upon those documents."
Based on the Rosa case, the court ruled that Coque's employer should have known or had reason to know of his illegal status, and therefore he could recover lost wages. The employer was responsible for the injuries and recoveries caused by an unsafe workplace.
Of course, not all injured undocumented workers are so lucky. Quelino Ojeda Jimenez, 20 years old, was in the United States illegally. He was working for a roofing company when he pulled on a metal sheet that wasn't secured by nails. He fell backward more than 20 feet to the ground. His workplace accident left him a quadriplegic, unable to speak, breathe or move.
The roofing company, which is now closed, said Jimenez was working for a subcontractor who may or may not have had workers' compensation insurance--but most definitely had a moral obligation to assist Jimenez.
After four months in a Chicago hospital, without his consent, he was put onto an air ambulance and flown to Oaxaca, the capital of the Mexican state where he was born. Jimenez is now in a hospital that is resource-poor, reusing filters for the breathing machine needed to keep him alive.
OPTIONS FOR EMPLOYERS
In 2009, according to the U.S. Department of Homeland Security, Office of Immigration Statistics, there were 10.8 million "unauthorized" immigrants in the United States, and an estimated 8 million were in the workforce as of last year. The states with the largest portion of undocumented workers were Nevada (10 percent), California (9.7 percent), Texas (9 percent) and New Jersey (8.6 percent).
Immigration, workers' compensation, and undocumented workers are all topics sparking nearly every state's interest. In 2010, according to the National Conference of State Legislatures, 46 state legislatures and the District of Columbia enacted 208 laws and adopted 138 resolutions regarding immigration issues.
Each state has a current position on the issue, so it's crucial for employers to know their state's workers' compensation statues. Keep an eye on key court decisions throughout every state for the scope of benefits allowed for injured undocumented workers. Get involved in your local and state elections. Go over safety and wellness programs to prevent injuries and protect all employees.
Workers' compensation laws were created to serve a humanitarian purpose: to provide protection and benefits to all workers. While this is an employer's moral and legal obligation, it will in turn also protect the employer from damaging lawsuits.
MARK NOONAN is a managing principal and the senior knowledge manager for workers' compensation for the Casualty Practice within Integro Insurance Brokers.
The opinions expressed in this column are the author's and do not reflect the position of this publication or Integro Insurance Brokers.
(Editor's note: In part one of this column last month, Mark tackled such questions as: What issues do injured, undocumented workers create for workers' comp programs? How will new state laws affect them? Read his March column here.)
Read more at the WorkersComp Forum homepage.
April 7, 2011
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