Friday, September 28, 2012

Exclusive Remedy: Still Surviving Challenges

Exclusive remedy is alive and well on both coasts of the United States.

In New York, the state's Appellate Division, 2nd Department, ruled that an employer that violated federal immigration law by hiring two undocumented aliens did not lose its exclusive remedy protection from claims filed by those workers after they were injured at work.

In New York Hospital Medical Center of Queens v. Microtech Contracting Corp., 2011-8990, 09/26/2012, the Hospital Medical Center of Queens hired Microtech Contracting to perform work on its property. Two of Microtech's employees, who were undocumented aliens, were injured on the job. Their employer provided workers' compensation benefits. The workers sued the hospital however for damages over and above the workers' compensation benefits.

The hospital filed suit against Microtech seeking contribution and indemnification. Microtech moved to dismiss the complaint on the ground that the suit was barred by Workers' Compensation Law Section 11. Microtech's motion was granted at the trial level.

On appeal the court noted that while New York courts have held that illegal aliens are entitled to workers' compensation benefits, there has been no ruling on the question of whether an employer that hires illegal aliens loses exclusive remedy protection.

But it found that the Immigration Reform and Control Act (IRCA) did not preempt state and local laws other than a prohibition against states and localities from imposing civil or criminal sanctions against employers that employ or recruit illegal aliens.

"While depriving the defendant of the protections of the Workers' Compensation Law may ultimately further the policies behind the IRCA, where, as here, no federal preemption exists, the proper course of action is not to create such a rule through a judicial determination, but, rather, to allow the New York Legislature to enact an appropriate rule based upon its policy preferences with respect to the welfare of state workers," the court said.

Thus, Workers' Compensation Law Section 11 barred the hospital's suit against Microtech.

In California, a hospital housekeeper was barred from suing her former employer in tort for allegedly terminating her in retaliation for her pursuit of benefits for an industrial injury.

In Dutra v. Mercy Medical Center Mt. Shasta, No. C067169, 09/26/2012, Michelle Dutra worked for Mercy Medical Center Mt. Shasta as a housekeeper. She injured her back while pulling a linen barrel across a snow-covered alley on Jan. 31, 2008, and filed a workers' compensation claim that same day.

Mercy terminated her that March. It told her this was because she continued to gossip while on duty after having been counseled about this behavior, she had altered a check which had been issued to her from a discretionary fund provided by a religious order affiliated with the hospital and for having falsified her time card.

Dutra sued Mercy, asserting her termination was in retaliation for her having filed a workers' compensation claim, in violation of Labor Code Section 132a. She also alleged a claim for defamation, contending her employer committed libel per se by communicating the grounds for her employment to others.

At trial summary judgment was granted in favor of Mercy on the defamation claim on the grounds that it was a privileged communication under the Civil Code, and dismissed the wrongful termination claim on the grounds that it belonged before the Workers' Compensation Appeals Board (WCAB).

On appeal, the 3rd District Court of Appeal noted that Labor Code Section 132a grants to the WCAB jurisdiction to remedy violations of it.

"The statute establishes a specific procedure and forum for addressing a violation," the court said. "It also limits the remedies that are available once a violation is established."

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