Human Rights Group Rebukes US Treatment of Injured Undocumented Workers

Wednesday, December 28, 2016 | 1

The United States has built a global reputation for being a nation of immigrants, but it's now drawing rebuke from an international watchdog organization for its failure to protect millions of undocumented immigrants from exploitation and discrimination in the workplace.

While the vast majority of states recognize that injured workers are entitled to comp benefits regardless of their immigration status, they don't always get the same benefits as documented workers and citizens, according to the Inter-American Commission on Human Rights.

The IACHR is a principal organ of the Organization of American States, whose function is to promote the observance and protection of human rights in North and South America.

All of the member counties are signatories to the American Convention on Human Rights, which requires that all persons have equal treatment under the law, "without distinction as to race, sex, language, creed or any other factor."

Last month, the IACHR published a report finding the United States had violated the terms of the American Convention by subjecting two injured workers to differential treatment because of their immigration status.

The IACHR determined that Leopoldo Zumaya and Francisco Berumen Lizalde were denied access to remedies that were available to citizens and documented workers after their on-the-job injuries, since the comp carrier for Zumaya's employer refused to pay for his medical care after his immigration status was discovered, and Lizalde was deported before his comp claim was resolved.

The IACHR said "undocumented workers should not be denied protection of their human rights ... on the basis of infractions of immigration regulations." Once a person enters into an employment relationship, the IACHR said, the person should enjoy "the same rights as all other workers."

But the United States allows "for undocumented workers to be exploited and discriminated against with little to no guarantees of judicial protection," the IACHR said.

The IACHR recommended that the United States rectify these violations by providing Zumaya and Lizalde with adequate monetary compensation for their injuries.

It also suggested that the United States needs to eliminate "all distinctions in employment and labor rights based on immigration status and work authorization, once a person commences work as an employee."

Employers should also be prohibited from inquiring about the immigration status of a worker asserting his or her employment and labor rights in litigation or in administrative complaints, the IACHR said.

Additionally, the IACHR said the U.S. ought to establish a procedure whereby undocumented workers may request the suspension of their deportations until the resolution of the proceedings on their comp cases and the workers have received the appropriate medical treatment for their injuries.

The IACHR further advised that the United States needs to improve and enhance the detection of employers who violate labor rights and exploit undocumented workers, and impose adequate sanctions against them.

According to the Pew Research Center, the United States has 44 million immigrants — more than any other country — that together make up 13.6% of the population.

Around 11.1 million of these immigrants are undocumented.

Bruce Buchanan, a past chairman of the Tennessee State Bar Immigration Law Section, said his general experience has been that most undocumented workers "don't want to get involved in any type of litigation against an employer," because they are worried their immigration status may be discovered.

Buchanan said it is difficult to speak in generalizations about whether undocumented workers "get a fair shake" when they file a complaint against an employer. He explained that if they are short-changed on wages, the workers have remedies. But if they're wrongfully fired, they can't get reinstatement. Fair or not, he said, "that's the law."

California applicants' attorney Ken Martinson agreed that it's hard to evaluate the treatment of undocumented workers as a whole, since the comp systems vary so much from state to state.

For example, he said, California law expressly grants all protections, rights and remedies available under state law — except any reinstatement remedy prohibited by federal law — "to all individuals regardless of immigration status."

Two years ago, the California Supreme Court relied on this provision of the Fair Employment and Housing Act to find that a worker's alleged use of a false Social Security number to get his job didn't prevent him from suing his employer for disability discrimination when it failed to rehire him after he got hurt on the job.

However, Martinson said he believes undocumented workers face "real barriers to getting benefits" that don't exist California, and "it's more common than most people would think."

Courts in Michigan and Pennsylvania have placed limitations on the availability of time-loss recovery for injured workers based on the inability to legally work in the United States, as has the New Hampshire Supreme Court

New York's highest court has also ruled that a worker is ineligible for vocational and educational services if he cannot be legally employed in the United States.

But workers have also scored victories.

Just last month, the Tennessee Supreme Court ruled that a statutory cap on comp benefits payable to undocumented workers is unconstitutional.

Two years ago, the Delaware Supreme Court ruled that a worker's inability to provide a valid Social Security number didn't bar his comp claim.

Michael Sharma-Crawford, an immigration law attorney in Kansas, said his experience has been that the ramifications of a worker's immigration status will depend on where the worker was unlucky enough to get hurt.

In some areas of the state, he said, it's not at all unusual for an undocumented worker who files a comp claim to wind up charged with identity theft, based on the worker's use of another person's identity to get the job.

A conviction on the identity theft charge will then subject the worker to removal proceedings, so the worker winds up "completely screwed over" by having filed the claim, Sharma-Crawford said.

But it's "a catch as catch can" scenario, he said. In some areas, Sharma-Crawford said, law enforcement personnel will actively look for undocumented workers, but in other places, criminal charges are filed only if the worker's immigration status is brought to light through the investigation of the comp claim.

Sharma-Crawford said he believes the authorization of a worker to hold a job shouldn't be relevant to a comp claim since the fact is that the worker did work.

"If they're injured because they did work for you, you should be taking care of them," he opined.

While the IACHR made the same recommendation, Sharma-Crawford said he is doubtful that the report would prompt any action by the United States.

Given the incoming president and his administration, Sharma-Crawford said he doubted the federal government was "going to pay a damn bit of attention" to what the IACHR had to say.

But, he said, he was hopeful that the report may "spark questioning" by the general public, and "discussion at least is a beginning" to effecting change.

The IACHR report was prompted by a complaint filed by the American Civil Liberties Union, the National Employment Law Project and the University of Pennsylvania Law School’s Transnational Legal Clinic.

To read the report, click here.