New Jersey Immigration Lawyer Discusses Undocumented Workers Injured on the Job
VOICES OF NY – BY SHANNON FIRTH – In the fall of 2011, after weeks of pain, Fausta walked to a hospital not far from his home in Staten Island. Just getting there was an ordeal. At the car wash where he worked, there’s a metal bumper that prevents cars from going off the track. Fausta, an undocumented worker from Mexico, slipped and hit this bumper again and again, and as a result his back and legs were in constant pain.
When he arrived at the hospital, there wasn’t anyone who spoke Spanish, so he left. When he visited another hospital a week later, he said, “The minute he [the doctor] saw me, he knew that something was wrong. I was all crooked.”
Fausta, 17, who asked that his last name not be published for fear of retaliation, received treatment from an orthopedic surgeon for nerve damage to his spine (lumbar radiculopathy) and an injured hamstring, but when he asked his employer Eddy Darmoni at the Touchless Auto Wash on Forrest Avenue to help with his medical expenses, he refused to pay even half of the bill. (Phone calls to Darmoni were not returned.) Eventually, with the help of an immigrant advocacy group, Fausta went to court and received a $25,000 settlement.
In New York and 27 other states, court challenges have established that undocumented workers are entitled to workers’ compensation – typically the reimbursement of medical expenses and a cash benefit covering a percentage of lost wages – just as any other workers are entitled to such compensation.
Many immigrant workers are unaware of these protections and advocacy groups have worked assiduously to inform them of their rights. Nonetheless, despite education campaigns, undocumented workers who are injured on the job are reluctant to confront their employers and press their claims. Fausta and others like him who have fought for compensation and won are in a distinct minority.
Fearful of retaliation, job loss, and deportation, undocumented workers keep quiet about their health and deal with injuries as best they can. Many work as day laborers on jobs that are inherently dangerous – roofing, carpentry, masonry, landscaping, window washing and the like. Even car washing, as Fausta’s case shows, can lead to serious injury.
While some workers in low-wage jobs are citizens, many are not. They are often paid in cash, and kept “off the books. ” Some employers won’t offer these undocumented workers a health plan or create any kind of safety net should they be injured.
Occasionally, an employer may help a worker if he agrees to tell the hospital that the injury happened outside of work. And in the worst cases, some employers, rather than help the injured workers, threaten to inform the government of their status if they try to gain compensation. While laws in some states prevent employers from using an employee’s immigration status to retaliate against a worker, in some parts of the country, predominantly the South and mid-West, this remains a problem.
In Fausta’s case, the pain in his back and legs was so severe he couldn’t work for a month and a half. Darmoni offered Fausta $300 to help pay medical expenses that totaled nearly $1,300. When Fausta said he would settle for $500, Darmoni laughed at him.
Fausta didn’t return to work the next day or the day after that. He visited El Centro del Inmigrante, a Staten Island non-profit that supports and empowers day laborers, where Gonzalo Mercado, the executive director, connected Fausta to an attorney at the Klein Law Group, who helped him to file a lawsuit against his employer.
During that time, Fausta moved twice. He had heard rumors of other workers being bullied, and he didn’t want Darmoni to know where he lived. He went to court three times. “Every time I was scared about not knowing whether the court would believe me,” he said.
In the last 10 years, courts in 28 states, including New York, New Jersey, Louisiana, Pennsylvania and California have ruled that all workers have a right to workers’ compensation regardless of their immigration status, according to Rebecca Smith, who specializes in researching immigrant justice for the National Employment Law Project (NELP).
These courts determined that despite the fact that the Immigration Reform and Control Act of 1986 states that it is illegal for an undocumented individual to work in the United States, state laws governing workers’ compensation do not expressly exclude undocumented workers. Still, the extent of these benefits may not always match what citizen employees are granted. In Michigan and Pennsylvania, time loss compensation is dependent on immigration status. Many states deny immigrants access to vocational rehabilitation. Wyoming is the only state to specifically exclude undocumented workers from workers’ compensation entirely. Courts in the remaining 21 states have yet to issue clear rulings.
Immigration Status Not Supposed to be Factor
In New York, the Workers’ Compensation Board’s stance on whether undocumented workers have the right to compensation for job injuries is definitive. “The New York State Court of Appeals has held that immigration status is not a factor in awarding benefits for workers injured on the job,” said Joseph Cavalcante, a representative of the Board.
While the issue may seem straightforward to the Board, immigrant rights groups and undocumented workers themselves say that petitioning for and actually receiving compensation is extraordinarily difficult. Fausta’s experience of working in unsafe conditions, being denied his legal right to reimbursement for medical care, and feeling threatened by his employer is all too common.
To begin with, not all immigrants are aware of their rights or that their health issues may be work-related. Luzdary Giraldo, a trainer and educator for the New York Committee for Occupational Safety and Health (NYCOSH), works directly with immigrants at risk of injury and wage discrimination. In addition to explaining to workers what their rights are, she does body mapping and job mapping exercises, which make the connection between a worker’s pain and his daily tasks obvious.
Yet knowledge alone doesn’t spur injured workers to act. Often, Giraldo said, “Even the ones who know they can exercise their rights don’t do it.”
Workers’ compensation insurance can be privately purchased by employers or is available from state insurance pools. The cost of insurance is a risk-based percentage of payroll. In New York, the base rate for insuring a secretary is roughly 25 cents per $100 in payroll whereas a carwash owner would pay almost $6 per $100 in payroll. Workers’ compensation insurance for a carpenter is nearly $20 per $100 in payroll.
Small employers may not carry workers’ compensation insurance and may claim to be unaware that they are required by law to carry it. (In New York, virtually all employers of for-profit businesses, most employers at non-profit businesses, and anyone who employs domestic help for more than 40 hours a week, must have workers’ compensation insurance.) Small employers may be unwilling, even informally, to help defray health care costs for their undocumented employees. Sometimes a business owner will deny that a worker even worked for him, or will insist that the injury must have occurred off the job.
Employer Threatens Worker and Family
The experience of Jeidran, 43, a carpenter living in New Jersey, is typical. Jeidran, who declined to share his last name and spoke through a translator, said that he was injured while working for his nephew at a client’s home in Staten Island. “I was going to cut a piece of wood and the saw grabbed the wood and my fingers too,” he said.
Jeidran had deep lacerations in both his middle and index fingers. He called his nephew and told him what had happened. His nephew said that he would meet him at the hospital, but he never came. Doctors told Jeidran there was a chance he might need surgery. His nephew told Jeidran that if he filed a workers’ compensation claim he would call immigration. He also threatened to hurt Jeidran’s two children who live with his ex-wife in Brazil.
Eventually, Jeidran took his employer, his nephew, to court. His nephew denied that Jeidran worked for him, but he was forced to recant when Jeidran showed up in court with his work uniform as evidence. Jeidran’s nephew still insists that Jeidran’s injury did not occur on the job. More than a year after his injury, Jeidran received an independent medical evaluation and is now undergoing treatment to restore the use of his hand. Andres Mejer, Jeidran’s lawyer said, “There was no reason for this delay, except for the employer’s intransigence.”
Meanwhile, Jeidran is sending his children only about half of the $600 or $700 a week he used to send. As a result of his injury he cannot perform the same work.
Mejer has represented dozens of undocumented workers in cases like Jeidran’s. “They are harder cases to litigate and they are harder cases to get a good result because of the road blocks they [the workers] sometimes unknowingly set up,” he said. While Jeidran contacted his employer the moment he was injured, some workers will tell an employer that they aren’t injured and continue to work for weeks and even months, because they fear losing their job.
In some cases, employers hire undocumented workers over other employees because they believe they will be less likely to complain about their working conditions or injuries. “For unauthorized workers, immigration status can be a potent source of potential abuse and exploitation by supervisors that may, in fact contribute to more accidents,” wrote Rebecca Smith in a 2012 NELP report.
Smith cited researchers at UCLA who surveyed immigrants about workplace safety in 2002. Some respondents said their jobs were so important to them that they could not “afford to worry” about dangerous working conditions. They kept quiet out of fear they would be fired or “blacklisted.” Another report Smith referenced, from the North Carolina Occupational Safety and Health Project, confirmed such fears. A former employment supervisor at a poultry plant in North Carolina, said she was told by plant managers “if they keep coming to the office [to complain] they are going to have to be let go,” reported NCOSH.
Even anti-immigrant organizations such as the Center for Immigration Studies acknowledge that undocumented workers are routinely exploited. Jessica Vaughan, the director of Policy Studies at CIS says that to some employers, undocumented workers are “like cannon fodder,” both expendable and replaceable. She supports giving benefits to undocumented workers – partly as a means to control immigration. “If we let employers avoid paying what a worker should receive for workplace injuries just because they’re illegal, they’re going to keep hiring illegal workers. They have no incentive to keep a safe workplace,” says Vaughan.
To be sure, all low-wage workers, not just undocumented workers, suffer workplace injuries and may be reluctant to make waves with employers. In 2008, the NELP surveyed 1,432 workers in low-wage industries in New York City. In their report, “Working without Laws,” the project found among those who were recently injured only 11 percent filed a worker’s compensation claim. A third of those workers said their employers refused to help them with their injury.
Since the NELP survey included both documented and undocumented workers, it may be safe to assume that conditions and outcomes were worse for the undocumented respondents.
“Treated as if they don’t exist”
Perhaps the most egregious ways in which immigrants suffer is when injuries are severe or life-threatening. Care can be costly, and deportation and sometimes death may result. In 2010, a 20-year-old Mexican migrant, Queline Ojeda Jimenez, became a quadriplegic after a fall from a rooftop. His care at Advocate Christ Hospital in Oak Lawn, Ill. cost $650,000, according to The Chicago Tribune. When no long-term care facility would agree to take over his care, the hospital deported him to his home state of Oaxaca. On Jan. 1, 2012, a year after being sent back to Mexico, Jimenez died of sepsis at a small hospital that the Tribune said could not meet his needs.
Hospitals have a duty to stabilize all patients who seek emergency medical care. After this obligation has been met, hospitals are required by federal law to implement a discharge plan and move the patient to an “appropriate facility.” Often, rehabilitation centers and nursing homes hesitate to receive critically ill immigrant patients who may not have public health insurance. When this happens, a hospital will sometimes, through its own means or a private transportation service, return the patient to his or her native country. The term hospitals use for the service is “medical repatriation.” Advocates for immigrants argue it is “de facto deportation” and that it is a violation of basic human rights.
“From an immigration perspective, it’s true that they’re not supposed to be here. But when an undocumented immigrant finds themselves injured, sometimes on the job, they’re treated as if they don’t exist,” said Lori Nessel, a professor of law and director of the Center for Social Justice at Seton Hall University, whose 2012 study in conjunction with the New York Lawyers for Public Interest reported nearly 1,000 attempts to repatriate immigrants over the last two decades from at least 15 states (not all patients were hurt on the job). Nessel believes such repatriations will increase when less federal funding is available for uninsured patients under the Affordable Health Care Act.
Lastly, while the ability to access Workers’ Compensation is, in theory, beneficial to immigrants, the process for all workers is so slow that some claimants drop their claims before they reach their goal or settle for less than they are owed. If the Queens office for Workers’ Compensation is any example, the claims process is tedious, with many months elapsing from the time of an injury before an individual even sees a judge, during which time the injured person might not receive any care or wages, according to a 2009 New York Times investigation by N.R. Kleinfield and Steven Greenhouse.
How can undocumented workers who become injured on the job receive the workers’ compensation benefits they rightfully should receive? There are some strategies, which may improve outcomes for all low-wage workers, not just undocumented workers, but they may be difficult to implement.
First, more inspections are needed to keep employees safe. Due to a lack of funding, there are only enough Occupational Safety and Health Administration (OSHA) inspectors to visit all workspaces in New York once every 140 years, says Joel Shufro, executive director of NYCOSH.
Second, greater penalties should be imposed on employers who break the law by maintaining unsafe conditions that result in a worker’s injury and death. Under the Obama administration fines have increased but are still pitifully low, said Shufro.
“The average fine for worker fatality is probably less than shooting a moose out of season in Maine,” he said. South Carolina has the lowest median current penalty at $1,688, followed by Idaho and Utah, which are both under $2,000. Rhode Island has the highest median current penalty of $43,880. New Jersey and New York fall at the lower end of this spectrum with median current penalties of $11,305 and $11,090, respectively.
Fatalities among foreign born workers have declined to 798 in 2010 since the 2006 peak of 1,046, according to the AFL-CIO report. Of the total deaths in 2006, 990 were Latinos. The decline in the overall number may simply be a function of the recession and lower employment rates overall.
A new federal initiative, OSHA’s Severe Violator Enforcement Program, which targets the “most persistent and egregious” violators for willful and repeated offenses, often related to fatalities, was introduced in June 2010. As of Jan. 31, 2012, OSHA has launched 242 SVEP cases, 27 of which found serious violations.
Finally, unionization would give immigrant workers the strongest protections from unscrupulous employers and ensure that their rights are respected. For now, accomplishing that on a wide scale may seem a pipe dream at a time when unions have lost ground nationwide. In the absence of unions, workers may form collectives like the one instituted by El Centro del Inmigrante, which represents day laborers in Staten Island. Along with acquiring basic information about employers, El Centro issues cards to its workers that track their employment on a given day, should an accident occur.
Unionization of car washes and similar businesses that employ immigrant workers, including undocumented workers, will be a challenge, but the process has begun. And people like Fausta are in the forefront of unionizing efforts to protect workers from exploitative employers.
Now working on a new, less strenuous job at a different car wash run by a different employer, Fausta recently joined with nine other workers in suing the Touchless Auto Wash for paying less than minimum wage.