Monday, June 16, 2014

Time To Talk

Exploitation of immigrants
Recalling my defense attorney days, it seems that by far and away the vast majority of the claims I was referred involved undocumented workers.

Back then the use of someone else's Social Security Number was just a nuisance - background checks were unproductive, tracking for other injuries or claims was impossible.

Otherwise, for the most part, if someone was injured and the medical reports supported the claim, compensation was paid.

In the years that have passed since I actively practiced workers' compensation law, however, false identification and illegal immigration status have taken on much greater significance as employers and their carriers use (or abuse) immigration status to deny benefits or take advantage of fears and customs.

WorkCompCentral correspondent, Michael Whiteley, in this morning's news, explores the dangerous paradox of immigration and workers' compensation with an in-depth report on a growing problem affecting a huge part of the national economy.

It's mostly a faceless population - the National Employment Law Project reported last year that, as of March 2010, 8 million undocumented workers were living in the United States. They accounted for 5.2% of the U.S. labor force.

The Public Policy Institute of California estimated that illegal workers comprised up to half of the nation's farm workers as of 2010.

Citing studies by the Urban Center, the Pew Research Center and other sources, NELP reported that, as of 2004, two-thirds of documented workers earned less than twice the minimum wage – compared to one-third of all workers. The median household income of undocumented immigrants in 2007 was $36,000 – well below the $50,000 median household income for U.S.-born residents.

NELP reported that failure to report injuries by immigrant workers was "a serious problem" across low-wage industries because of language barriers and a fear of being disciplined or fired.

The U.S. Occupational Safety and Health Administration reported that Hispanic workers suffer a disproportionate number of workplace injuries and deaths. For instance, in New Jersey, 17% of that state's workers are of Hispanic origin, but accounted for 24% of workplace deaths in 2009.

Whiteley reviews numerous case anecdotes where undocumented workers suffer severe, debilitating injuries but get ensnared in the immigration system, and their lives, and the lives of their families, are ruined.

There is a vocal minority that claims that undocumented workers are taking jobs away from citizens, but I think that most people don't truly believe those claims - not with two-thirds of them earning less than the minimum wage doing back-breaking physical labor tending the nation's crops or building your next house...

WorkCompCentral columnist, Peter Rousmaniere, has been following immigration and its relationship to workers' compensation for years. In his latest column he writes:

"James Baldwin, debating William Buckley at Cambridge University in 1965, described the legacy of slavery as the tragedy of "when one has absolute power over another person." To the undocumented worker, her or his employer holds nearly absolute power over safety."

I get lots of mail and comments from injured workers criticizing workers' compensation as a non-responsive, discriminating system that fails to live up to expectations for prompt medical relief and adequate indemnification. These are from people who have a good command of the English language.

Imagine if those with limited language skills, afraid of deportation or worse, complained about workers' compensation and the tactics and exploitation of those less concerned with decent treatment and the dignity of human beings over the Almighty Dollar. I suspect my inbox would be a lot more full.

It's unfortunate that the defeat of U.S. House Majority Leader Eric Cantor, R-Virginia, last week is going to delay or divert the discussion on immigration reform.

Workers' compensation is supposed to be about providing for the health and welfare of people, all people, who get injured doing their jobs.

It's time to talk about whether we're really serious and committed to making that happen.

Carriers should not be so inclined to use false identity or illegal residency to deny or reduce benefits, but instead should be seeking expatriation of the employers who illegally hire undocumented workers and don't pay workers' compensation "tax" on them.

Law enforcement shouldn't be so vigilant in prosecuting the injured worker lacking legal immigrant status but rather should be seeking those at the root cause of the dilemma - the "employers" who seek unfair competitive advantage with undocumented labor.

And instead of deporting illegal aliens, we should instead seek to enforce criminal sanctions against those who exploit them, particularly those in the field of workers' compensation who prey upon the fears and lack of knowledge or education of the illegal population to use them for unscrupulous financial gain.

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