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Immigrants' right to workers' comp: undocumented foreign-born workers are often hired for the most dangerous and lowest paid jobs. They deserve workers' compensation protections - but don't always get them.

In Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held, by a slim 5-4 margin, that undocumented workers are not entitled to back pay under the National Labor Relations Act (NLRA). (1) The Court reasoned that a worker who used false documents to get a job could not receive back pay "for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by criminal fraud." (2)

The Court added that
 allowing the board to award back pay to illegal
 aliens would unduly trench upon explicit
 statutory prohibitions critical to federal
 immigration policy, as expressed in the Immigration
 Reform and Control Act [IRCA].
 It would encourage the successful evasion of
 apprehension by immigration authorities,
 condone prior violations of the immigration
 laws, and encourage future violations. (3)


Since Hoffman, appellate courts and benefits review boards across the United States have considered the question of immigrant workers' entitlement to workers' compensation, with varying results. (4) In each case, employers have argued that undocumented workers, especially those who used false documents to get a job, are not entitled to either workers' comp benefits or certain other benefits, such as those covering wage loss.

In many of these cases, the workers were asked about, and revealed, their undocumented status during litigation of their workers' comp claims. Such disclosure is unnecessary and objectionable under normal rules of discovery, and it may needlessly subject injured workers to deportation.

Hoffman does not support the proposition that undocumented workers have no right to workers' compensation benefits. Courts should not extend its holding and should protect immigrant workers claiming such benefits from intrusive discovery about their status.

Policy of inclusion

In 1960, 1 in every 17 workers in the United States was an immigrant. Today, that ratio is 1 in 8. (5) Latino immigrants are now far more likely to be killed on the job than their counterparts of European ancestry. From 1992 to 2000, fatalities among Latino immigrants rose by 67 percent--at a time when the number of fatal occupational injuries to all workers declined by 5 percent. (6)

One explanation: Employers in low-wage, high-injury industries often hire undocumented workers. Independent experts have found high numbers of undocumented workers in the manufacturing, services (including restaurants), agriculture, and construction sectors. (7) And Immigration and Naturalization Service (INS) inspections have found high numbers of undocumented workers in the agricultural, meat-packing, construction, garment, and poultry industries. (8)

Because of their low-wage status, undocumented workers are least able to bear a loss of income following a job-related injury and are in greatest need of workers' comp protection. Whether they receive these benefits usually depends on how the governing state statute defines "covered workers."

Most statures include "aliens" in the definition of covered employees. (9) Others simply cover "individuals" or "persons." Some more specifically include "aliens" whether lawfully or unlawfully employed. (10) Only in Wyoming are undocumented workers explicitly excluded from workers' compensation coverage by statute. (11)

Before Hoffman, state courts in California, Colorado, Connecticut, Florida, Georgia, Iowa, Louisiana, Nevada, New Jersey, New York, Pennsylvania, and Texas specifically held that undocumented workers are covered under their state workers' compensation laws. (12) Since Hoffman, state courts and administrative agencies in Arizona, Florida, Massachusetts, Michigan, Minnesota, Nebraska, Oklahoma, Pennsylvania, Tennessee, and Texas have followed that precedent. (13)

At least one state court has limited the availability of time-loss recovery for injured workers based on immigration status. The Michigan Court of Appeals held that wage-loss compensation could be suspended for an undocumented worker from the date that the employer "discovered" (in the context of the employee's comp claim) that the employee was not authorized to work. The court based its holding on a state law that allows suspension of wage-loss benefits if a worker commits a crime that prevents him or her from working or obtaining work. (14)

The court said that an undocumented worker would have to commit multiple crimes in order to obtain work. The worker violates the law if he or she uses false documents to obtain work, or attempts to obtain work without providing immigration information. No time-loss benefits can be awarded when a worker is unable to obtain employment because of the commission of the crime, the court concluded. (15) The court did not seriously discuss the prime cause of the worker's inability to work: the injury, rather than the use of false documents to obtain the job.

The Pennsylvania Supreme Court issued a more ambiguous decision on this issue, holding that illegal immigration status might justify terminating benefits for temporary total disability. (16) It is not clear whether, after that decision, the Pennsylvania Department of Labor and Industry would find that undocumented immigrants are never entitled to time-loss benefits or whether it would conclude that once a person is able to work, the employer can suspend benefits without showing that work is available.

Employers that claim injured workers should be denied wage-loss benefits draw parallels between the back-pay remedy denied in Hoffman and compensation for lost time under state workers' comp statutes. However, these two remedies are substantially different.

First, under the NLRA, a worker who is unlawfully fired has a duty to mitigate damages by finding new employment. This is not the case with state workers' comp laws. Time-loss benefits under these laws are contingent on whether a worker is physically able to go back to work. It is irrelevant whether the worker is legally authorized to work or even whether the worker gets a job at all--benefits continue until the worker is physically able to return to work.

Second, the availability of workers' comp benefits does not raise the concerns that the Supreme Court cited in Hoffman about encouraging undocumented workers to either immigrate or remain in the United States illegally. As the Connecticut Supreme Court said in Dowling v. Slotnik, the potential availability of workers' comp benefits is hardly an incentive for workers to come to the United States. (17) While the Hoffman Court was concerned about providing incentives for undocumented workers to remain here to mitigate their damages, employees who suffer work-related injuries in the United States are not required to remain in this country to receive benefits. (18)

In some states, including Massachusetts, workers' comp time-loss benefits are tied to loss of earning capacity. In these states, the distinction between workers' compensation and back pay is stronger, because the benefits compensate a worker for a physical impairment that impedes his or her ability to earn, rather than for one lost job opportunity with a particular employer.

Preemption

In some post-Hoffman cases, employers argue that the IRCA and, specifically, the Hoffman decision preempt either coverage under state workers' compensation laws or certain forms of compensation to workers who have presented false documents to get a job. These arguments were raised and rejected even before Hoffman. (19) A proper preemption analysis should conclude that an award of workers' comp to an undocumented worker poses no conflict, or even tension, with federal law.

The Supreme Court has established three categories of federal preemption of state law: express preemption, field preemption, and conflict preemption. (20) In analyzing each, congressional intent is the "ultimate touchstone," (21) and the "starting presumption [is] that Congress does not intend to supplant state law." (22)

Express preemption. A state law is expressly preempted when Congress explicitly defines "the extent to which its enactments preempt state law." (23) The IRCA's only preemption language states that "the provisions of this section preempt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens." (24)

On its face, this language does not apply to the provision of workers' comp benefits to an undocumented immigrant employee. As the Connecticut Supreme Court said in Dowling, since "workers' compensation benefits are designed to compensate the worker for injuries arising out of and in the course of employment, without regard to fault ... an award of such benefits reasonably cannot be described as a 'sanction.'" (25)

Without any explicit statutory language indicating that Congress intended the IRCA to bar undocumented immigrants from receiving state workers' compensation benefits, no express preemption should be found to exist.

Field preemption. Under this analysis, state law is preempted where Congress has demonstrated an intent for federal law to "occupy a field" exclusively. This type of congressional intent may be inferred under two circumstances: when a "scheme of federal regulation ... [is] so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it," (26) or "where an act of Congress 'touch [es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" (27) Neither analysis leads to a finding of field preemption of workers' comp benefits for undocumented workers.

Passed in 1986 as an amendment to the Immigration and Nationality Act, the IRCA regulates the circumstances under which an employer can hire or continue to employ an immigrant. (28) Its provisions do not regulate ancillary, state-provided, work-related benefits, such as workers' comp, for immigrants who already have been hired. It therefore cannot be considered to pervasively occupy the field of providing workers' comp benefits to undocumented immigrants.

Preemption also fails under the dominant-interest analysis because workers' comp is not a field in which the federal interest is dominant. It is indisputably a field that the states traditionally have occupied. In DeCanas v. Bica, the Supreme Court confirmed that "states possess broad authority under their police powers to regulate the employment relationship to protect workers within the state. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmen's compensation laws are only a few examples." (29)

Conflict preemption. This category occurs "where it is impossible for a private party to comply with both state and federal requirements" and "where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." (30) This could happen only in a specific circumstance where an employer has innocently learned of a worker's undocumented status after an injury, and state law requires the employer to offer a job to the injured worked. In that case, federal law would prevail. (31)

In most cases, there is no conflict between an employer's providing a state workers' comp benefit and its complying with its duties under the IRCA to verify an immigrant's status on initial hire. Thus, any preemption argument "can only be a losing one." (32)

Vocational rehabilitation benefits

Before Hoffman, courts in California, Nevada, and Oregon had found that undocumented workers are not always entitled to collect vocational rehabilitation benefits. (33)

The California and Nevada courts established a hierarchy of benefits--each progressively more expensive for employers--available to an injured worker: first, remaining to the prior job; second, moving to another job with the same employer that would accommodate the worker's injury or physical limitations but that would require no additional training; third, placement with a new employer; and, finally, training for a new job.

In both the California and Nevada cases, the employer had innocently discovered the worker's undocumented status and could not rehire him without violating immigration law. The courts found that the workers' comp system should not be required to provide more expensive vocational rehabilitation benefits to a worker who does not qualify for the other, less expensive remedies simply because of his or her immigration status.

In the Oregon case, the employer attempted to "reverify" the worker's status after he filed a claim. As will be shown below, the discovery of the worker's immigration status was probably unnecessary and possibly illegal, and it allowed the employer to avoid workers' compensation liability by creating a conflict between state and federal law.

No court has addressed the issue of vocational rehabilitation since the Hoffman decision. The following section suggests that when balancing the need for disclosure of a worker's immigration status, states and administrative agencies follow the lead of the NLRB since Hoffman and protect workers from retaliatory discovery.

Inappropriate inquiry

In nearly every reported case in which an employer challenged an undocumented worker's right to workers' comp, the employer did not seem interested in knowing the worker's true immigration status until after the claim was submitted. Then, once claims were presented, employers checked Social Security numbers with immigration authorities or simply asked workers in discovery about their status and whether they used false documents to get the job.

Nearly all courts considering the issue have found that immigration status is not relevant to coverage under workers' comp laws. Nor should it be considered relevant to time-loss compensation claims, since these are based on the worker's physical or mental inability to work, not on his or her immigration status.

Moreover, any threats by an employer to report a worker to the INS would be considered retaliation under many state and federal laws. (34) The policy of the INS itself is that when the agency receives information concerning the employment of undocumented or unauthorized immigrants, officials must first determine whether the information is being provided to retaliate against workers or interfere with their rights. (35)

Employers may claim that they need to be certain about an injured worker's immigration status to comply with the IRCA. Yet forced disclosure of immigration status in the context of a workers' compensation claim may itself violate that statute.

The IRCA requires that employers examine certain documents that workers present at the time of hire, to determine their eligibility for employment. Employers are required to accept documents that appear on their face to be genuine and to relate to the individual named.

The statute allows employers to reverify status only when the document an employee showed at the time of hire reaches an expiration date signaling the employment authorization has expired or when the employer learns that an employee is undocumented. (36)

The immigration act prohibits reverification in all other situations, including when "an individual takes approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer." (37)

The NLRB's approach to disclosure of status is instructive for courts. The board's general counsel has determined that there is "no obligation to investigate an employee's immigration status unless a respondent affirmatively establishes the existence of a substantial immigration issue. A substantial immigration issue is lodged when an employer establishes that it knows or has reason to know that a discriminate is undocumented." (38)

In a recent case, the NLRB said that the fact that an employer had received a letter from the Social Security Administration indicating there was no match for a number a worker provided was not evidence that the worker was in the country unlawfully. (39) Thus, an employer should not be allowed to raise the issue of a worker's immigration status without first showing that it is relevant to the workers' comp claim and that the employer obtained the information lawfully and independently of that claim.

Many courts have issued protective orders against employers that have attempted to force disclosure of immigration status in litigation. In Flores v. Albertsons, Inc., the defendants used Hoffman to request immigration documents from members of a federal class action brought by janitors for unpaid wages under state and federal law. A trial court in California held that Hoffman did not apply to claims of unpaid wages and noted that allowing such discovery was certain to have a chilling effect on the plaintiffs' claims. (40)

In a similar case, involving unpaid wages and overtime, Liu v. Donna Karan International, Inc., the defendant made a discovery request for the disclosure of a garment worker's immigration status, but the federal court in New York denied the request on the grounds that release of such information would be more harmful than relevant. (41)

In another case under Title VII, Rivera v. NIBCO, Inc., the plaintiffs obtained a pre-Hoffman protective order prohibiting the defendant from using discovery to inquire into their immigration status. Immediately after Hoffman was decided, the defense moved for reconsideration of that protective order. (42) The case is now pending before the Ninth Circuit. (43)

In some cases, it is less clear that a particular form of relief is available to an undocumented worker, such as where a claimant must mitigate damages. Requesting a protective order may still be helpful so that the court can rule on relevance before the plaintiff decides whether to disclose status, plead the Fifth Amendment on potential criminal violations, or modify his or her requests for relief.

Generally, where state law is properly applied and discovery appropriately restricted, immigration status should not limit the availability of workers' comp remedies. In only one circumstance--where state law requires

an employer to rehire a worker, and the employer innocently discovers, outside the context of a worker's comp proceeding, that the worker is undocumented--should status limit remedies. Plaintiff attorneys should seek formal discovery protection where necessary.

Employers will continue to argue-incorrectly--that Undocumented workers have no right to workers' compensation. Plaintiff lawyers must be aware that Hoffman does not affect these benefits.

A correct analysis of employers' responsibilities under the IRCA reveals that immigration status is not relevant to time-loss compensation, vocational re-habilitation, or other aspects of the workers' comp system. Moreover, questioning workers who claim these protections about their immigration status is improper; courts will protect their status from disclosure.

Notes

(1.) 535 U.S. 137 (2002).

(2.) Id. at 149.

(3.) Id. at 151.

(4.) Sec, e.g., Sanchez v. Eagle Alloy, Inc., 658 N.W.2d 510 (Mich. Ct. App.), appeal granted, 671 N.W.2d 874 (Mich. 2003); Correa v. Wymouth Farms, Inc., 664 N.W.2d 324 (Minn. 2003).

(5.) Abraham T. Mosisa, The Role of Foreign Born Workers in the U.S. Economy, 125 MONTHLY LAB. REV. 3, 3 (May 2002), available at www.bls. gov/opub/mlr/2002/05/art1full.pdf (last visited Feb. 24, 2004).

(6.) BUREAU OF LABOR STATISTICS, CENSUS OF FATAL OCCUPATIONAL INJURIES, FATAL OCCUPATIONAL INJURIES TO FOREIGN-BORN WORKERS BY SELECTED WORKER CHARACTERISTICS (2002); CENTERS FOR DISEASE CONTROL AND PREVENTION, PROTECTING THE SAFETY AND HEALTH OF IMMIGRANT WORKERS (May 2002), available at www.cdc.gov/programs/workforc22.htm (last visited Feb. 25, 2004); AFL-CIO, DEATH ON THE JOB: THE TOLL OF NEGLECT 9-10 (12th ed. 2003), available at www.aflcio.org/yourjob economy/safety/memorial/upload/death_2003 _intro.pdf (last visited Feb. 25, 2004).

(7.) B. LINDSAY LOWELL & ROBERT SURO, HOW MANY UNDOCUMENTED: THE NUMBERS BEHIND THE U.S.-MEXICO MIGRATION TALKS 7-8 (Mar. 21, 2002), available at www.pewhispanic.org/site/docs/pdf/howmany undocumented.pdf (last visited Feb. 25, 2004).

(8.) GENERAL ACCOUNTING OFFICE. ILLEGAL ALIENS: SIGNIFICANT OBSTACLES TO REDUCING UNAUTHORIZED ALIEN EMPLOYMENT EXIST 6 (GAO/GGD-99-33. Apr. 1999); Lena H. Sun & Peter S. Goodman, Poultry Firm to Help INS Monitor Workers, WASH. POST, Oct. 23, 1998, at A18.

(9.) See, e.g., ARIZ. REV. STAT. [section] 23-901 (6) (b) (2004); CAL. LAB. CODE [section] 3351 (a) (West 2003); FLA. STAT. ch. 440.02(15)(a) (2004).

(10.) See, e.g., MONT. CODE ANN. [section] 39-71 118 (2003); N.C. GEN. STAT. [section] 97-2(2) (2003); S.C. CODE ANN. [section] 42-1-130 (Law. Co-op. 2003).

(11.) WYO. STAT. ANN. [section] 27-14-102(a)(vii) (Michie 2003).

(12.) See, e.g., Champion Auto Body v. Indus. Claim Appeals, 950 P.2d 671 (Colo. Ct. App. 1997); Gene's Harvesting v. Rodriguez, 421 So. 2d 701 (Fla. Dist. Ct. App. 1982); Artiga v. M.A. Patout & Son, 671 So, 2d 1138, 1139 (La. Ct. App. 1996).

(13.) See, e.g., Safeharbor Employer Servs., Inc. v. Velazquez, 860 So. 2d 984 (Fla. Dist, Ct. App. 2003); Cherokee Indus., Inc. v. Alvarez, No. 99,173, 2004 WL 224441 (Okla. Ct. App. Oct. 23, 2004); Medellin v. Cashman KPA, No. 03324300 (Mass. Dep't Indus. Accidents Dec. 23, 2003); Correa, 664 N.W.2d 324.

(14.) Sanchez, 658 N.W.2d 510.

(15.) Id. at 520.

(16.) Reinforced Earth Co. v. Workers' Comp. Appeal Bd. (Astudillo), 810 A.2d 99, 108-09 (Pa. 2002).

(17.) 712 A.2d 396,404 (Conn. 1998).

(18.) See ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKERS' COMPENSATION LAW [section] 66.03 (2003).

(19.) See, e.g., Dowling, 712 A.2d 396, 404-06,

(20.) English v, Gen. Elec. Co., 496 U.S. 72, 78-79 (1990).

(21.) Retail Clerks Int'l Ass'n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103 (1963).

(22.) New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995).

(23.) English, 496 U.S. 72, 78 (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-98 (1983)).

(24.) 8 U.S.C. [section] 1324a(h) (2) (2003).

(25.) 712 A.2d 396, 403 (citations omitted).

(26.) See English, 496 U.S. 72, 79 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,230, rev'd, 331 U.S. 247 (1947)).

(27.) Id.

(28.) See 8 U.S.C. [subsection] 1324a-1324c.

(29.) 424 U.S. 351, 356 (1976) (emphasis added).

(30.) English, 496 U.S. 72, 79 (citations omitted),

(31.) Under the IRCA, if an immigrant becomes unauthorized while employed, the employer is compelled to discharge the worker when the worker's undocumented status is discovered. 8 U.S.C. [section] 1324a(a) (2).

(32.) LARSON & LARSON, supra note 18.

(33.) See Foodmaker Inc. v. Workers' Comp. Appeals Bd., 78 Cal. Rptr. 2d 767, 777 (Ct. App 1998); Tarango v. State Indus. Ins. Sys., 25 P.3d 175, 179 (Nev. 2001); Hernandez v. SAIF Corp., 35 P.3d 1099 (Or. Ct. App. 2001).

(34.) See, e.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984); Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053 (N.D. Cal. 1998).

(35.) U.S. CITIZENSHIP & IMMIGRATION SERVS., QUESTIONING PERSONS DURING LABOR DISPUTES, OPERATION INSTRUCTIONS [section] 287.3a (Dec. 4, 1986)(redesignated as 33.14h of the SPECIAL AGENTS FIELD MANUAL (Apr. 28, 2000)), available at http://uscis. gov (click on "Immigration Laws, Regulations, and Guides," then click on "Operation Instructions," scroll down and click on "OI 287 Field officers, powers and duties").

(36.) See New El Rey Sausage Co. v. INS, 925 F.2d 1153, 1158 (9th Cir. 1991); 8 C.F.R. [section] 271a.2(b) (viii) (A)(1) (2002)

(37.) 8 C.F.R. [section] 274a.2(b)(viii)(A)(1).

(38.) NLRB General Counsel, Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens After Hoffman Plastic Compounds, Inc. (Memo GC 02-06, July 19, 2002), available at www.nlrb.gov/nrlb/shared_files/ gcmemo/gcmemo/gc02-06.asp?/useShared=/ nlrb/legal/gcmemo/default.asp (last visited Feb. 25, 2004).

(39.) Tuv Taam Corp., Nos. 29-CA-24329, 29-CA-2424375, 29-CA-24553, 2003 WL 22295361, at * 5 n.7 (NLRB Sept. 30, 2003).

(40.) No. CV0100515AHM(SHX), 2002 WL 1163623 (C.D. Cal. Apr. 9, 2002).

(41.) 207 F. Supp. 2d 191 (S.D.N.Y. 2002).

(42.) 204 F.R.D. 647 (E.D. Cal.), reconsideration denied, 2001 WL 1688880 (E.D. Cal. Dec. 21, 2001).

(43.) Rivera v. NIBCO, Inc., No. 02-16532 (9th Cir. filed Aug. 6, 2002). For additional post-Hoffman decisions granting plaintiffs' protective orders, see Cortez v. Medina's Landscaping, No. 00 C 6320, 2002 WL 31175471, at * 1 (N.D. Ill. Sept. 30, 2002); Flores v. Amigon, 233 F. Supp. 2d 462 (E.D.N.Y. 2002); De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237 (C.D. Ill. 2002).

REBECCA SMITH, a lawyer with the National Employment Law Project in Olympia, Washington, is coordinator of its Immigrant Worker' Rights Project. She acknowledges the substantial contributions to this article made by Amy Sugimori, staff attorney, National Employment Law Project; Audrey Richardson, staff attorney, Greater Boston Legal Services; and Joshua Auerbach, Murnaghan Fellow, Maryland Public Justice Center.
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