Labor Advocates: Deck Stacked Against Undocumented Workers Reporting Injuries

Monday, August 28, 2017 | 2

Jose Flores' attorneys don't think it's a coincidence that the Boston-area construction worker was arrested by immigration authorities moments after leaving an employer-arranged meeting about a work injury.

Though Tara Construction's attorney denies that the company called Immigrations and Customs Enforcement on 37-year-old Flores, the company has nonetheless joined the ranks of employers such as Ohio's Case Farms and Florida's SouthEast Personnel Leasing that have been publicly accused of using injured workers' immigration status to chill claims over the past several months.

Hayoung Noon, director of strategic partnerships at the National Employment Law Project, said that her organization has been hearing of an increase in immigration-based retaliation against employees over the past several months. She spoke of the climate of fear fostered by President Donald Trump's anti-immigrant rhetoric and executive order granting immigrations agents more sweeping authority as an impetus.

"We are eight months into this administration, and we've definitely heard from both folks in the field and public enforcement agencies that there's been an increase in retaliation," Noon said in a phone interview with WorkCompCentral. "I think the current climate has really emboldened employers to act with impunity against workers that come forward to enforce their rights."

Just how much of that retaliation is connected to workers' compensation cases, though, isn't clear. The California Labor Commissioner's Office spoke last month of a surge in complaints from workers who say their employers threatened them with immigration enforcement. 

Commissioner Julie Su's office has opened 58 investigations into immigration-based retaliation claims so far this year, up from just 14 complaints last year. And her office issued a 27-page memo in July instructing staff on how to ask Immigration and Customs Enforcement agents to leave employment-dispute hearings. The memo followed three instances over the past 10 months in which ICE agents showed up at commission-affiliated facilities. 

The Division of Labor Standards Enforcement's Retaliation Investigations Unit has no record of any workers' compensation cases that led to an immigration threat in 2016 or 2017, said Erika Monterroza, a spokeswoman for the Division's parent agency, the Department of Industrial Relations.  

The Massachusetts Attorney General's Office, which receives complaints about in-state employers such as Tara Construction, does not maintain data on the causes of its retaliation complaints, either, AGO spokeswoman Emalie Gainey said. It is unclear how many of the hundreds of retaliation complaints posted on its labor law violation reporting database have to do with immigration or workers' compensation. 

Several weeks before Flores' arrest, however, State Attorney General Maura Healey reaffirmed the state's commitment to protecting undocumented workers against immigration-based retaliation in an advisory posted on International Workers Day. 

Flores' arrest and release caused a stir in Massachusetts' legal, advocacy and medical communities. Cambridge family physician Lara Jirmunus wrote an article for Boston public radio station WBUR-FM called, "Why Nearly Half My Patients Who Get Hurt On The Job Don't Report It." The answer, she said, is fear of retaliation based on their immigration status. 

"(Flores' case) sends a chilling message to immigrant workers, suggesting that if they demand their rights to payment for work-related injuries, they risk deportation," Jirmunus wrote.

Jirmunus' article speaks to a problem that is more common among undocumented injured workers than getting reported to ICE, Austin claimants' attorney Aaron Allison said: failing to report the claim in the first place.

"There's a fear among undocumented workers to approach an attorney or to utilize the system because of their immigration status, so we know that there's a lot of immigrants who may be injured on the job — and injured quite badly — who don't pursue their rights under the law for fear of being identified and deported, especially in the current political climate," Allison said in an interview with WorkCompCentral. 

He said he hasn't personally heard from any workers whose bosses have threatened to call ICE on them after injuries. But stories like Flores' don't surprise him. 

"There's no financial incentive of any kind for an employer to notify the Division of Workers' Compensation or carrier if an undocumented worker is hurt," Allison said. "You don't want to get into an issue of, 'What are you doing having undocumented workers working for you?' There are fines and penalties associated with that."

And then there's the issue Allison says he sees all the time, whether a worker has documents or not: An employer doesn't want its premiums to go up. 

"Even if you file a workers' compensation claim and there's no benefits ever paid for whatever reason, they're still going get a premium increase just because a claim is filed," Allison said. "So the employer says, 'He says his back hurts. Let's not file a workers' compensation claim — let's let him take some time off and see how he does and if it'll clear up.' A lot of times, the employer won't report an injury on the job. That's happened at about 25% of the cases I've handled throughout my career."

In the majority of U.S. states, employees can receive workers' compensation benefits regardless of immigration status. Federal law upholds undocumented workers' right to the same labor law protections as other workers, and many states' laws follow suit. In California, Su cited the state's "long-standing policy" that "immigration status is irrelevant to protections of California labor laws" when explaining the rationale for her anti-ICE memo. 

In some states, however, lawmakers have introduced or attempted to introduce laws that make it easier to deny undocumented workers benefits. ProPublica and NPR recently reported on a Florida law that makes filing a workers' compensation claim using a false Social Security number a felony. 

Although some employers enter workers' Social Security number onto claim forms for them, the workers bear the brunt of the punishment, which often results in their deportation. In the reporters' analysis of 800 arrests under the law, they found that at least one in four of the workers were detained by ICE or deported after arrest. 

Last week, Sen. Anitere Flores, R-Miami, the president pro tempore of the state Senate, called for a review of the law.

"Legitimate injuries shouldn’t be denied just because the person was an undocumented immigrant," Flores said. "One needs to balance the going after fraudulent claims with not overcompensating and then denying claims to those individuals who have actually been injured."

In Ohio, Rep. Bill Seitz, R-Cincinnati, was unsuccessful this year in his latest attempt to ban undocumented workers from the workers' compensation system. The measure passed the Republican-controlled House but died in the Senate. 

Courts have been mixed on their decisions regarding undocumented immigrants' workers' compensation rights. 

In Georgia, case law established by Martines v. Worley & Sons Construction (2006) holds that workers can have their benefits discontinued if they cannot fill a light-duty position due to their immigration status. In that case, the injured construction worker was offered a truck-driving position that he could not fill because of his lack of a valid driver's license. 

In Indiana, on the other hand, the Supreme Court decided this year that injured workers can pursue claims for lost future earnings regardless of immigration status. Ruling in Escamilla v. Shiel Sexton Co. in May, the high court reversed an appellate court's decision.

CORRECTION: A previous version of this story incorrectly stated that the Department of Industrial Relations did not track whether its retaliation complaints had ties to workers' compensation cases.