by guest authors Professor Sarah Paoletti (Penn) and Rebecca Smith (National Employment Law Project)
On November 1, 2006, Leopoldo Zumaya and Francisco Berumen Lizalde filed a petition before the Inter-American Commission on Human Rights arguing that the US Supreme Court’s 2002 decision in Hoffman Plastic Compounds, Inc. v. NLRB and its progeny directly and indirectly resulted in denial of equal access to the courts and equal remedies for their on-the-job injuries, in violation of international law. More than eight years later, Mr. Zumaya and Mr. Lizalde finally had their day in court – a hearing on the merits, held Monday, March 16th, before the Inter-American Commission. Submissions in the case are available here.
Mr. Zumaya and Mr. Lizalde were among the approximately 8 million or more undocumented workers in the US. Laboring in notoriously dangerous jobs, they both had the grave misfortune of being injured on the job. While the applicable workers’ compensation laws in the states where they were injured do not facially discriminate on the basis of immigration status, a chasm exists between the rights on paper and reality. Following the Supreme Court decision in Hoffman Plastic, 535 U.S. 137 (2002), the US legal system allows immigration enforcement to trump a workers’ rights to a full, equal and effective remedy, and condones and in some cases facilitates discrimination against workers, solely on the basis of immigration status.
Shortly after Mr. Zumaya fell, and when it became apparent he would not be able to return to his original job, he was fired and kicked out of his employer-provided housing. He stayed with a friend while his lawyer helped him pursue his claims for workers compensation. Unfortunately, due to a Pennsylvania Supreme Court decision, Reinforced Earth Co. v. WCAB, 810 A.2d 99 (Pa. 2002), that effectively denied wage loss benefits to undocumented workers with permanent partial disability, he was forced to settle his claim for nearly one-third of what a US citizen worker could have obtained.
Mr. Lizalde was not just denied access to a full remedy under the law; he was criminally prosecuted, seemingly in retaliation for his on-the-job injury. Shortly after an operation on his injured hand, Mr. Lizalde received a call from the insurance company inquiring into his immigration status. After that call – and just before his scheduled appointment for his workers’ compensation impairment rating evaluation -- he was arrested at his home by immigration authorities and put in jail, leaving his wife and US citizen daughter without their family’s sole provider. He was criminally prosecuted for document fraud by an Assistant US Attorney who had publically stated that undocumented workers filing for workers compensation could find themselves prosecuted and facing up to a year or more in jail. Knowing that he could not support his family from jail, he pled guilty and was deported. Shortly after his deportation, Mr. Lizalde’s workers’ compensation attorney filed for workers compensation and subsequently received a call from the US attorney who had prosecuted Mr. Lizalde, asking whether Mr. Lizalde had “illegally” reentered, effectively serving as a warning against continuing to pursue relief.
The petitioners’ experience is not unique. In many jurisdictions, unauthorized workers are denied full access to compensation for work-related injuries. In others, they may not be accorded full remedies for discrimination on the job. And everywhere in the US, unauthorized workers fired for exercising their fundamental freedom of association at work receive no compensation whatsoever.
The denial of certain remedies for unauthorized workers has had other effects. When workers have the temerity to file a complaint for abuses suffered on the job, many employers will aggressively try to force them to reveal their status in legal proceedings, and some judges have so ordered. Incidents of actual retaliation, and workers’ legitimate fear of retaliation, have resulted in a climate where the rights of undocumented workers to unionize, to be compensated for an injury, and to be free from abuse and discrimination in the workplace are routinely abused.
There have been some governmental efforts to protect unauthorized workers, at least from retaliation. Some workers are able to receive visas or prosecutorial discretion as victims of workplace crimes, and have been able to ward off deportation by virtue of their involvement in labor disputes. But these remedies are not widely available, and workers continue to face both legal and practical limitations on the exercise of their labor rights.
In the IACHR case, Petitioners seek recognition that their rights were violated, remedial measures and reentry into the US to pursue their compensation claims. In addition, they ask that national laws, policies and practices be amended to ensure that all workplace protections are applied in a nondiscriminatory manner, and that comprehensive legislation be enacted to correct the US Supreme Court’s decision in Hoffman Plastic.
In addition to these measures, there are immediate administrative reforms that would move the US closer to the rule that " the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment." For example, the US can: 1) take steps to ensure that all undocumented workers in the midst of legitimate labor disputes can claim the right to remain in the US and work; 2) strengthen existing policies that prevent employers from using a workers’ immigration status as a weapon in labor disputes; and 3) educate and instruct courts and other officials on the limits and applicability of the Hoffman decision, prohibit judicial and agency inquiries into immigration status, and work with state officials to ensure that state laws are in compliance with human rights norms.
While Mr. Lizalde and Mr. Zumaya were not able to attend the DC hearing in person, they eagerly await the outcome, and a recognition from the Commission that their rights were violated. They are optimistic that changes to US law and policy will follow to ensure that full rights and remedies are available to the approximately 8 million unauthorized workers who make enormous daily contributions to our economy and society.
March 17, 2015 in Economic Justice, Immigration, Workplace | Permalink
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