Monday, November 25, 2013

Immigration, Thanksgiving & Comp

Immigration reform has been sidelined by the Affordable Care Act, Sequestration, and other congressional befuddlement and partisan fighting (and even infighting) in politics and the media, but there's no question that something will be done to change immigration laws sometime in the near future.

As we go into Thanksgiving week, where we celebrate the blessing of the harvest (i.e. hard work providing sustenance for living), it is particularly poignant that this tradition was brought to this country by immigrants (our forefathers) dating back as early as the 1600s.

The work of immigrants tilling the land, harvesting its riches.

They weren't illegal immigrants back then because there weren't too many laws regarding immigration.

And they weren't undocumented immigrants because they had documents from the mother country allowing them to traverse the world.

They were just immigrants seeking a better life than was available at the mother country and willing to work hard and sacrifice in order to make a new reality (okay there were some property disputes along the way with the native indians...).

Immigration and the rights of immigrant workers has been a workers' compensation issue for some time and one issue that seems to touch some emotions is whether or not undocumented workers, aka illegal immigrants, are entitled to workers' compensation benefits, and if so, what and how much.

The Iowa Supreme Court recently ruled that an undocumented worker is eligible to receive workers' compensation benefits bringing the state in line with the vast majority of states that recognize a worker's right to assert a comp claim regardless of his or her immigration status.

The case involved Pascuala Jimenez who legally entered the United States in 1991 with a visa that permitted her to stay for 10 years. She settled in West Liberty, Iowa.

Jimenez started working for Staff Management, a temporary employment agency, in 2001, the same year her visa expired. Staff Management sent her to work for Proctor & Gamble at its Iowa City factory.

I won't go into the details of her injury - suffice to say Jimenez experienced what was determined to be a compensable hernia injury, and then an exacerbation of that injury over the course of a couple years,

Jimenez underwent surgery in November 2007 and returned to work without restrictions, but she was unable to perform all of her job duties because of her pain.

Less than a month later, Staff Management terminated Jimenez because, the company said, it had discovered she did not have authorization to work in the United States.

The parties dispute why Jimenez was terminated as you might imagine - those arguments are largely irrelevant to whether or not a) an injury occurred, b) whether that injury was industrial, and c) whether Jimenez was entitled to workers' compensation benefits.

The bottom line is that Jimenez filed for benefits in 2009 when a second surgery was deemed necessary. At that time Staff Management argued that Jimenez was ineligible for benefits under the Iowa Workers’ Compensation Act because she was an undocumented worker and that the Iowa Workers' Compensation Act was superseded by the federal federal Immigration Reform and Control Act.

Staff Management lost all the way up the appellate chain.

Eventually the Supreme Court, in a decision by Justice David Wiggins, concluded that the Iowa Workers' Compensation Act had to include an undocumented worker in its definition of a covered "employee" since the act did not specifically list an undocumented worker as someone who would be excluded from coverage.

Wiggins also rejected Staff Management's argument that the IRCA should override Iowa's comp laws.

The IRCA makes it unlawful for employers to hire undocumented workers, or to knowingly continue to employ workers who become unauthorized.

Thus, Wiggins said, it was illegal for Staff Management to employ Jimenez. But, he said this did not mean that Staff Management's employment contract with Jimenez was illegal.

"The goal of the IRCA was to inhibit employment of undocumented workers and to punish the employers who offered jobs to these workers," does not to diminish the labor protection available to workers under state law, Wiggins explained. 

Since Iowa law requires a contract of service between the employer and employee for the employee to be covered by the Iowa Workers' Compensation Act, Wiggins reasoned that declaring an agreement between an undocumented worker and an employer invalid would "undermine the IRCA by encouraging employers to hire undocumented workers because the employers would not be liable under the Iowa Workers' Compensation Act for any injuries those workers sustained."

He added that it would also "undermine the purpose of the Iowa Workers’ Compensation Act to make statutory compensation available to employees when the employees sustain injuries as a result of the hazards of the business."

Thus, Wiggins said, public policy is served by recognizing a contract between an employer and an undocumented worker for purposes of coverage under the Iowa Workers' Compensation Act.

Wiggins went on to say that the payment of benefits to undocumented workers under the Iowa comp scheme did not undermine the IRCA because the receipt of benefits as compensation for a disability caused by a work-related injury does not provide an incentive for workers to work illegally, but merely serves to make an injured worker whole. 

Iowa reached the correct decision. To have ruled otherwise would permit employers to unscrupulously circumvent concepts of basic human dignity and social obligations - what we now celebrate as our harvest in modern Thanksgiving rituals.

It does not matter where one comes from - we have determined long ago that if one provides the service of labor to another there is a social obligation to ensure protection against the consequences of injury incurred in the course of such service.

For that I give thanks...

1 comment:

  1. David,

    I echo your sentiments about giving undocumented workers comp benefits, but you made one crucial error. Those documents that allowed the first Europeans to settle here had no legal standing with the landlords of this continent, who were here 20,000 years before Europeans ever ventured across the Atlantic in wooden ships. However, if we believe some scientists, there may have been early Europeans in North America some 10 - 13,000 years ago during the last ice age. But they crossed the ocean on foot or small rafts, as the water level was lower, and the sea ice made the distance between North America and Europe much closer.