Saturday, May 20, 2017

Workers’ Compensation and Undocumented Workers: Coverage versus Retaliation

Our own Judge David Torrey has done an excellent job on this blog bringing readers up to speed on the scope of workers’ compensation coverage of undocumented workers in the United States. To repeat Dave’s findings:

As far as I can tell, 32 states now have authority holding that an undocumented worker can be an employee for purposes of WC laws, 1 state has authority to the contrary (Idaho), 18 are officially undecided, and 1 (Wyoming) considers such workers employees if the employer believes the worker was documented.  The total is 52, as I am including D.C. and the LHWCA.

Since Dave wrote, the Ohio House of Representatives passed a bill that would, among other things, deny workers’ compensation benefits to undocumented workers. As of this writing that bill has not yet been acted upon by the state Senate.

A different type of undocumented worker/workers’ compensation story has been circulating recently. An injured worker in the Boston metro was apparently arrested by immigration officials. A public radio depiction of the unfolding of events suggests that, after a worker had been injured on the job, his bosses “set him up” by directing him to “lawyers.” He was met instead by ICE. I have no idea whether these events transpired in the manner related; but the alleged facts provide a terrific vehicle for discussing the distinction between statutory coverage of an employee and protection of that employee’s employment for exercising a statutory right.

Imagine that an acknowledged employee files a claim for benefits and is fired for doing so. A number of jurisdictions would hold such a discharge unlawful, either under their governing workers’ compensation statutes, or under a judicially created public policy exception to the employment at will doctrine. A customary remedy would be reinstatement of the employee to his or her job plus mitigated backpay. Now imagine that the fired employee is an undocumented worker. You see the problem? How could a unit of the government (whether a court or an administrative agency) reinstate an employee to unlawful employment? It is one thing to say that the undocumented worker should receive compensation for an injury sustained during employment which—unlawful or not—occurred. It is another thing altogether to say that the government should restore an unlawful working arrangement. On the other hand, and as Justice Oliver Wendell Holmes might say, let’s look at the situation through the eyes of a “bad man.” Might not an employer with an undocumented injured worker simply fire the worker or contact ICE? ICE will not reveal tipsters (as a former NLRB attorney I can attest to the fact). Without a reinstatement remedy, the undocumented worker filing a claim may risk his or her employment. Would the worker do it? It would depend on the quality of the job and the severity of the injury. A partially disabled worker, while entitled to benefits despite the discharge, could be hard-pressed to earn a living.

This simply puts us back in the position debated in the National Labor Relations Act case, Hoffman Plastic Compounds, Inc. v. N.L.R.B. Justice Scalia’s majority opinion argued that reinstatement and backpay remedies undermined the policy of federal immigration law. Justice Breyer, in dissent, argued that not providing recovery to statutory employees incentivized employers to hire these workers who, in effect, possess rights without remedies. The same policy questions are at issue in workers’ compensation cases. I would be quite comfortable, in all jurisdictions save Idaho, arguing that an undocumented injured worker was entitled to workers’ compensation benefits. I would be much less comfortable arguing that an undocumented injured worker discharged in retaliation for filing a workers’ compensation claim should be reinstated. I am also not clear on what disincentive exists to prevent employers from reporting undocumented injured workers to ICE, though I suppose if the employer had knowingly employed the worker without proper credentials that unlawful conduct would create a disincentive to report.

One final point – I continue to be of the view that states should consider explicitly insulating attorneys representing undocumented workers covered under various state employment statutes (including workers’ compensation) from professional responsibility charges.

Michael C. Duff

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