Monday, January 12, 2015

The Work Immigration Enigma

Immigration into the United States, particularly through channels that aren't deemed "legal" has always been an emotionally charged issue.

When I was practicing workers' compensation defense law the majority of my cases seemed to (I don't have firm statistics - purely anecdotal) involve mono-lingual, hispanic workers without proper documentation of their authorization to be in the United States.

And since I practiced in California, particularly Southern California, which encompassed the lower half of the Central Valley (breadbasket to the world for many crops), and Ventura County (the only place in the world that produces three crops of strawberries a year), these folks were usually farm workers.

These farm workers were particularly suspect to abuse, as I came to realize after years of deposing them. It seemed that the particular plight of these folks generally followed the same path. Certainly some endured less abuse than others, certainly some set themselves up for more abuse than others - but clearly due to their socio-economic demographic they represented a pattern of exploitation upon them that most of us don't experience, let alone endure.

The Los Angeles Times last month ran a series on the delicious produce we enjoy in United States grocery stores that is grown in Mexico and imported. You've seen these vegetables and fruits - perfect in size and color, just as tasty if not more so than locally grown, and available for purchase "out of season."

But the produce, despite U.S. corporate promise to the contrary, is grown and harvested using abusive labor practices akin to slavery: farm workers trapped in barbed wire fenced camps - escapees are beaten and confined to solitude; children as young as 10 years old forced to toil up to 12 hours per day to earn less than $20 per day to help feed their families while they subsist on a stack of tortillas for the day; labor camp bosses withholding wages from workers to "pay" for overpriced goods sold at camp "stores" to the laborers leaving nothing for the workers to take home; squalid living conditions where multiple families share a roof and not much more without running water or electricity.

Read that series, and you will understand why the United States is such an enticing destination despite the risks of travel, "coyotes," immigration, habitation; all to work the lowest level of the labor chain, at the bottom of the wage scale.

These people were not only subject to abuse in their home land, but also in the United States in the various social systems, not the least of which is workers' compensation.

When I was practicing in the 1980s and early 1990s one of the more common schemes was to solicit mono-lingual immigrant hispanic workers via "cappers" who were paid to bring in "patients" to medical facilities and made promises to the workers of free medical care and payment of cash for their troubles.
Targeting immigrants for more abuse...

The scheme wasn't about inflating medical treatment, or skimming attorney fees from settlements (though those activities invariably occurred) - the real meat of these schemes was to generate medical-legal bills in all areas of medical specialization on a single claim. The old neck bone is connected to the back bone is connected to the chest bone is connected to the hip bone is connected to the leg bone, etc. These came to be known as "skin and contents" claims. The reports from the specialists conducting the medical-legal evaluations all came from the same clinics, and the bills came from the same billing facility.

The reports all looked and read the same, and when I would ask a claimant in deposition about all of this activity they were completely clueless. There was more than just a few occasions where the claimant would deny ever having any claim of psychological complaint, for instance, despite what the medical report would say.

Try as we might with United States laws, there always seems to be a steady tide of people that are willing to risk everything to escape the literal hell of their native countries - being illegal in the United States is more comforting than being legal in the home land.

So laws get passed to ease this tension: amnesty, drivers licenses, labor. Law makers try to accommodate this class of people because they know (and I think even the most conservative, ardent objector to immigration liberalization know as well) that reducing immigration violation can't be accomplished without host country reform of its own laws and practices.

In the workers' compensation context there always seems to be an issue of whether or not a worker without proper immigration documentation can receive benefits. In general, most rulings have come down on the side of the injured worker for purposes of basic benefits such as treatment and indemnity, but any benefit that would entail re-employment, such as vocational rehabilitation services, is not available as that would be to sanctify violation of U.S. laws.

There are U.S. Supreme Court and the Florida Supreme Court cases pending to determine if workers who used false Social Security numbers to gain employment can be prosecuted for workers' compensation fraud, even if they haven't filed claims for benefits.

Florida has a law on the books that broadly provides for prosecution for fraud if one uses false documentation, not otherwise defined or specified. The law is in the workers' compensation statutes, but has been interpreted to apply outside of the work comp realm.

Last year, the Florida 4th District Court of Appeal upheld an interpretation of Florida Statutes Section 440.105(4)(b)9 as allowing charges to be brought against a garbage hauler who had been using a fake Social Security number, even though he had never filed an injury claim.

Arizona had a similar law that the U.S. Supreme Court struck down in 2012.

Francisco Brock, also known as Armando Lopez-Brock, filed a petition for writ of certiorari with the nation's highest court on Dec. 26, arguing that Florida's treatment of the presentation of a false Social Security number as a 3rd degree felony under the state Workers’ Compensation Law violates the Supremacy Clause of the U.S. Constitution.

"According to Brock [the Florida 4th District Court of Appeals decision from which this appeal to the US Supreme Court is taken], any and all undocumented workers can be charged and convicted of workers’ compensation fraud, a felony, for using any false identity to obtain employment, even though there is no workers’ compensation connection," he wrote in his petition.

The state has until Jan. 29 to respond to his arguments in the case, now titled Brock v. State of Florida.

In the meantime, the Florida Supreme Court has another, similar, matter pending before it called Hector v. State of Florida.

Hector Jordan, Jordan Hector, had worked for Waste Pro USA, along with Brock. Both men were arrested in a raid on the company back in 2012, and both were charged with violating Section 40.105(4)(b)9.

Both Brock and Jordan won on motions for dismissal at the trial level, but those were reversed by the 4th DCA. The Florida Supreme Court refused to take Brock's case, which is why it is before the U.S. Supreme Court, but has not yet made a decision on Jordan's case.

Jordan's petition is virtually identical to Brock's, and it asserts that the 4th DCA's decision is in conflict with a 2008 ruling from the 1st DCA in Matrix Employee Leasing v. Hernandez.

In the Matrix case, Leopoldo Hernandez admitted that he had used a false Social Security number for the purpose of obtaining employment and that this conduct violated Section 440.105(4)(b)(9).

However the 1st DCA said Hernandez was entitled to workers' compensation benefits after he got hurt on the job because there was no evidence Hernandez had violated Section 440.105(4)(b)(9) "for the purpose of obtaining workers’ compensation benefits."

Though both Brock and Jordan cited Matrix to the 4th DCA, the court said that it was inapplicable to their situation since they were involved in a criminal case, and the 1st DCA analysis of Section 440.105(4)(b)9 had been limited to how the statute applied to the denial of coverage in a workers' compensation case.

We'll ultimately, of course, see how the courts deal with Brock and Jordan - the point is that there is still a second class of human in the work force: those who desire to escape deplorable conditions that, though outlawed, still continue because there's a market (the United States principally) for the goods and services that those without "documentation" produce.

There's been a lot of debate about immigration reform, and President Obama has taken heat lately for proposing executive action due to stalemate in Congress. It's a complicated issue, no question about it.

But workers' compensation should not be about immigration, legal documentation or anything other than whether one gets hurt on the job.

Yes, workers' compensation is a political football - certainly that's what contributes to its needless complexity. But work injury protection laws were not intended to regulate immigration status.

And that's the sad part. There's a large population that comes to this country to escape impoverishment, escape child labor, escape indentured servitude, only to find that there are vultures on the other side of the border happy to exploit their fears, insecurities and ignorance.

1 comment:

  1. AT the age of 12 I used to pick cumbers and strawberry's in and around Woodburn OR. And I don't know what the folks legal status was back then. I just remember being one of the few whit boys out there, and as I struggled to keep up, these men would stop what they were doing and come help me carry my buckets up to the bins. And when the lunch wagon rolled around they would share their taco's, and stories of adventure, and work life with me. Then later in life after moving to southern CA. and entering the work force, on golf course and landscaping crews and construction crews, I was once again side by side, with my old friends that were always willing to help.Now Once their harmed Then they get.No Help?

    Thanks for standing up for yet another class of folks that are forced to pay for a product that many folks know they will never get to use.

    Some what like taxation without representation or fraud at the very least.

    Thanks for speaking up for the Voiceless in our society once again, Mr. Depaolo