Friday, February 14, 2014

If Benefits Provided, Protections Flow

New York's highest court on Thursday unanimously ruled that workers' compensation exclusivity can shield an employer from tort liability for an employee's workplace injury, even if it has hired undocumented workers.

And that result is completely just in my mind.

Some activists are upset that an employer of undocumented workers could not be sued in tort for injuries because they believe that providing the workers' compensation shield against tort liability creates an incentive for abusing workers who may be too timid or afraid to take corrective action because of their immigration status.

But obviously in this case the immigration status of the workers involved did not inhibit their request for, and receipt of, workers' compensation benefits. So if the remedy is available to the employee, the protections should also flow to the employer...

In New York Hospital Medical Center of Queens v. Microtech Contracting Corp., No. 1, Microtech Contracting was hired to do some demolition work in a basement room that housed an incinerator. A Microtech representative then hired Luis and Gerardo Lema to perform the work.

The Lemas are brothers, natives of Ecuador, were not legally employable in the United States at the time Microtech hired them.

Microtech supplied the Lemas with a sledge hammer and a chipping gun – essentially a small jackhammer – and put them to work. The vibrations from the chipping gun dislodged a metal chimney attached to the wall of the room, about 10 to 20 feet above the floor. The chimney toppled over on to the brothers, injuring them both.

The brothers made claims for, and received, workers' compensation benefits, from Microtech's insurance carrier. The Lemas then sued the hospital in tort. A supreme court judge granted summary judgment for the hospital on the issue of liability under Labor Law Sections 240(1) and 241(6).

The hospital then reached a settlement with the Lemas and subsequently 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, the exclusive remedy provision of New York comp statutes.

Rejecting the hospital's argument that because the Lemas brothers were in the country illegally, that the contract of employment was illegal and thus not subject to workers' compensation exclusivity, the court said the question really was whether Microtech was entitled to the safe harbor in Section 11.

Concluding the answer was yes, the court acknowledged that the policy of the state was that wrong-doers should not be rewarded for such, but the court reasoned that these principles were not at issue because the court was not being asked to enforce or recognize rights arising from the illegal contract between Microtech and the Lemas.

"If the illegality of the employment contract does not defeat the employee's rights under an otherwise applicable state statute," the court reasoned, there was no reason why it should defeat an employer's rights under an otherwise applicable statute like Section 11.

A number of state courts have found that undocumented workers are entitled to income benefits under workers' compensation. The U.S. 5th Circuit Court of Appeals has also reached the same conclusion for indemnity benefits under the Longshore and Harbor Workers' Compensation Act.

A distinction is that many also say that because the workers can not legally be employed they can not avail themselves of return to work benefits such as vocational training since they can not thereafter legally obtain employment.


There will be no publication on Monday in observance of President's Day. I will resume Tuesday.

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