Issues to Consider Regarding Undocumented Workers
Monday, September 21, 2009 | 0
By Eugene F. Keefe
Synopsis: Economy Packaging redux, research study and thoughts on the broader issues of immigration as it affects workers' compensation law.
Editor's comment: Back in July, we wrote an article on Economy Packaging, the recent case where a unanimous Illinois Appellate Court ruled someone who was employed illegally and injured could obtain lifetime total and permanent disability benefits because they couldn't locate suitable replacement work. Earlier this month we provided an update on that case in regard to a recent Nebraska state law. We had a lot of comments and responses to both articles, and have had some time to reflect on the nature of our immigration system as it relates to workers compensation in general. We take this opportunity to editorialize.
While we continue to believe the court's ruling in Economy Packaging was something of a travesty, we would like to take a moment and analyze some of the reasoning behind why. Let's face it, in today's America, just like in our parents' and our grandparents' generations, there has been a massive amount of immigration to our great nation. Why? America, leaving aside its partisan political nature, is still the land of opportunity. It is still one of the only places in the world where you can begin anew with only the clothes on your back and make your own way. And there are numerous success stories of immigrant families doing just that.
What is different about today's America is that the immigration system has become a gigantic federal bureaucracy that moves at a snail's pace and really cannot process the applications it receives. The system is still paper driven and anecdotal evidence of files misplaced for months at a time if not years are commonplace. Also, evidence indicates it is far easier to move through the system when one is already within the borders of the U.S. than from without. This, among a vast amount of other things, leads to what we colloquially call "illegal immigration."
We recently saw an article and study on the web about low wage workers. A 2008 study of 4,387 workers in low wage jobs in Chicago, Los Angeles and New York is titled "Broken Laws, Unprotected Workers." The academic study revealed widespread violations of basic wage and labor laws. These violations affected all workers, regardless of legal status, race, or gender. The study found numerous violations of minimum wage and overtime laws; workers who log hours without being paid for their time; workers who are denied earned breaks and meal time; charges illegally deducted from worker pay; retaliation by employers for complaints; and denial of workers' compensation benefits, including encouraging employees to commit fraud.
Stating state workers' comp systems are not functioning in the low-wage labor market, the report's executive summary noted of the workers in the sample who experienced a serious injury on the job, only 8% filed a workers' compensation claim. When workers told their employer about the injury, 50% experienced an employer reaction including firing the worker, calling immigration authorities or instructing the worker not to file for workers' compensation. About half of workers injured on the job had to pay their bills out-of-pocket or use their health insurance to cover the expenses. Workers' compensation insurance paid medical expenses for only 6% of the injured workers in their sample.
The report recommends three principles that should drive the development of a new policy agenda to protect the rights of all workers:
- Strengthen government enforcement of employment and labor laws
- Update legal standards for the 21st century labor market
- Establish equal status for immigrants in the workplace
Were our forefathers who set foot on this shore illegal? Our states bind together in union, but suppose they did not, would it be illegal for an Illinoisan to travel to Michigan? Essentially it is government sanction that allows legality. But why do we need government sanction? We here at KCA are all for background checking for criminal activity, and for communicable disease screenings, but the driving wedge in politics is jobs. Often you hear cries of illegals stealing American jobs. Here we come to the crux of the issue in relation to workers' compensation.
We as a society need to redefine how we look at the issue. Illegal aliens or undocumented workers are people. Almost all undocumented workers are "workers" they are people who want to work. They wouldn't be working if they didn't want to, and in fact, many of them wouldn't come to America if there weren't jobs available here for them.
What does that mean in the bigger picture? It means that in almost all respects, there are employers out there who are looking for help, and there are people willing to work for them. In the vast majority of cases, if there were no legal consequences, and even in some cases with the consequences, employers would not care if the employee was "illegal" or not if they can do the job and they are a good employee, that is all they are looking for. These people are not stealing jobs, they are doing the jobs that employers cannot get citizens to perform. Is it any wonder when today's unemployment benefits often pay more than some of these positions do?
From that standpoint, we move into the arena of workers' compensation. We agree that illegal or undocumented workers should be generally entitled to the protections of the act, to an extent. If you lose a finger, you lose a finger. And the rapid receipt of certain benefits in exchange for doing away with tort liability is something that everyone can agree is a worthwhile compromise.
What the court did in Economy Packaging may have changed the game however. By ordering the employer to pay total and permanent benefits to a person who could easily have obtained work but for their "illegal" status, is not what the system or its originators intended. If these individuals could obtain a job, it would be a moot issue and vocational counseling would have been used as it is in many other every day cases. But until Federal law allows this, the states should not be able to penalize an employer simply because they can't legally re-employ an injured worker and have to comply with federal law.
The situation gets even more complex when you look at where it is going in the long run. We are creating more and more incentive to eliminate illegal aliens in the work force. Agree or disagree with the concept, but at present we have jobs out there that are being performed by these hard-working folks, and if we continue to crack down on employers, there won't be anyone to work for them, which means they go out of business, which means fewer and fewer jobs, which means more and more unemployment, and a smaller economy, and so on, ad infinitum. What is the real fix? We need to overhaul the federal immigration system and make it easier for respectable, hard-working individuals to get their visas. It's almost "criminal" to make someone a criminal for wanting to work.
The link for the report we cite is http://nelp.3cdn.net/59719b5a36109ab7d8_5xm6bc9ap.pdf. If you have thoughts and comments, please post them on our blog at www.keefe-law.com/blog.
Synopsis: Introducing the Keefe, Campbell & Associates, LLC Workers' Compensation and Employment Law Blog
Editor's comment: We here at KCA have been providing you with our Update for many years. Well, the 21st century has finally caught up with us. We are proud to present you with www.keefe-law.com/blog which currently contains every substantive article written in this update in 2009. We have enabled the comments feature so you will be able to carry on conversations in regard to the issues and topics discussed herein, and it is fully searchable and each entry is tagged for easier browsing.
Now, when you are faced with an issue and you seem to recall reading an insightful article about it somewhere, you can pop on over and check it out. Odds are, if it deals with Illinois comp, employment or general liability law, we have written about it at some point in the past year or two.
As stated above, currently the archive goes back through January of 2009, however we have plans to archive all issues of the Update, all the way back to the founding of KCA in February 2003. Be sure to stop on by when you are browsing the web. If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com.
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Eugene F. Keefe is a partner in the Chicago law firm of Keefe, Campbell & Associates. This item from the firm's blog, www.keefe-law.com/blog, was reprinted by permission.
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