March 16, 2015

OSHA's critique of workers' compensation

On March 5, OSHA issued a scorching critique of the workers’ comp system today, “Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job.”

This is an unprecedented statement by a federal agency on inadequate benefits, the financial burden of injuries on injured worker households, misclassification of workers as independent contractors, under-reporting of injuries into the workers’ comp system, and other failings of the 100 year old state based workers’ comp system.

Some excerpts from the executive summary:

….More than three million workers are seriously injured, and thousands more are killed on the job. The financial and social impacts of these injuries and illnesses are huge, with workers and their families and taxpayer-supported programs paying most of the costs.

For many injured workers and their families, a workplace injury creates a trap which leaves them less able to save for the future or to make the investments in skills and education that provide the opportunity for advancement. These injuries and illnesses contribute to the pressing issue of income inequality: they force working families out of the middle class and into poverty.

The costs of workplace injuries are borne primarily by injured workers, their families, and taxpayer-supported components of the social safety net. Changes in state based workers’ compensation insurance programs have made it increasingly difficult for injured workers to receive the full benefits (including adequate wage replacement payments and coverage for medical expenses) to which they are entitled.

Employers now provide only a small percentage (about 20%) of the overall financial cost of workplace injuries and illnesses through workers’ compensation.

The pervasive misclassification of wage employees as independent contractors and the widespread use of temporary workers have increased the risk of injury and the number of workers facing financial hardships imposed by workplace injuries.

The most effective solution to the problem posed by this paper is to prevent workplace injuries and illnesses from occurring….. At the same time, it is vitally important that state-based workers’ compensation programs take steps to eliminate roadblocks that prevent workers with compensable injuries or illnesses from receiving the full compensation to which they are entitled.


January 12, 2015

States that allow undocumented workers workers' comp benefits

“Arizona, California, Colorado, Connecticut, the District of Columbia, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas and Virginia all have case law establishing that undocumented immigrant workers are covered under the workers’ compensation statutes of those respective states.

“Just this past year, the Delaware Supreme Court ruled that a worker's inability to provide a valid Social Security number didn't bar his comp claim, and the California Supreme Court said a worker's alleged use of a false Social Security number to get his job didn't prevent him from suing his employer for disability discrimination when it failed to rehire him after he got hurt on the job.”.

From article by Sherri Okamoto in WorkCompCentral, Jan 12 2015

December 5, 2013

A free guide to immigrant worker safety and health

With generous support from Concentra and Broadspire, I authored Work Safe: An Employer’s Guide to Safety and Health in a Diversified Workforce. This first of its kind guide is a very accessible source of practical advice on special techniques in worker safety training, medical treatment issues, hiring and using interpreters and other topics. It includes an extensive guide to free online resources on occupational safety organized by key occupations of foreign-born workers.

The Guide includes simple, brief introductions to workers compensation and to work safety regulation in the U.S., in English and Spanish. They can be translated into other languages.

The Guide grants the reader wide discretion on copying and using portions of the guide.

October 22, 2013

The Year of Immigrant Workers and their work injury risks

Leaders Speak at WorkCompWire invited me to write two columns on what employers need to know about work injury risks of foreign-born workers. Below are the two columns. Thanks to Stephen Sullivan of WorkCompWire.

Part 1 (8 20 13)

This is the Year of the Immigrant Worker.

As we all know, Congress is deeply engaged in the first serious chance for comprehensive immigration law reform since the 1980s.

Foreign born workers, in part due to their numbers, in part due to their employment skewed toward above average injury risk jobs, sustain a large share of the nation’s annual three million work injuries.

In 2012, there were 25 million foreign-born persons in the U.S. labor force, comprising 16% of the total workforce. Hispanics accounted for 48% of the foreign-born labor force in 2012, and Asians accounted for 24%. (Recently Asians have been entering the U.S. at higher levels than Hispanics.) Undocumented workers account overall for about 5% of the nation’s total workforce and roughly one third of foreign-born workers.

For those engaged in some aspect of work injury risk management ---work safety, claims, medical care, the law, corporate risk management, insurance, etc. – a closer look at the immigrant workforce is urgently needed:

• Work safety and claims experts who know this workforce have been warning that, when paired with a native born worker, a foreign born worker poses higher injury risk due to language barriers, cultural miscues and poor health literacy
• The growing presence of immigrant workers is not temporary and reversible. It is part of global economic forces. Some 150 million workers globally are estimated to be working outside their country of origin.
• Private sector employment growth has been and will continue be in fields with relatively high immigrant participation, ranging from software engineers to personal health aides.

These trends come to life when we examine a few key occupations below. But first a note on undocumented workers, which we often, incorrectly, view as an essentially isolated workforce.

Continue reading "The Year of Immigrant Workers and their work injury risks" »

October 17, 2012

Race matters in award of workers comp benefits

A new study reveals that injured construction workers in Illinois received higher workers’ compensation payments than their Hispanic or black counterparts – to the tune of an additional $6,000.

EHS Today reported on the study, which was published in the Journal of Occupational and Environmental Medicine.

Per the magazine, researchers at the University of Illinois at Chicago School of Public Health assessed ethnic disparities among construction workers injured on the job by linking medical records data from the Illinois Department of Public Health and workers' compensation data from the Illinois Workers' Compensation Commission between 2000 and 2005. In all, they evaluated 1,039 injury cases, including 724 white construction workers, 68 black, 168 Hispanic and 79 workers of other ethnicities.

They found that white, non-Hispanic construction workers in Illinois were awarded higher settlements – approximately $6,000 more – than Hispanic or black workers with similar injuries. The settlements for white workers were substantially higher despite controlling for average weekly wage, type of injury, injury severity, weeks of temporary disability, percent permanent partial disability, and whether or not the worker used an attorney – all factors that are known to contribute to the final decision for monetary compensation in the claims process.

White construction workers consistently were awarded the higher monetary settlements despite the fact that the mean percent permanent partial disability was equivalent to or lower than that in black and Hispanic construction workers, according to the study's authors. This was true for amputations, torso injuries, open wounds of the upper extremity and traumatic brain injury. The most common types of injuries for all workers were fractures, internal injuries, and open wounds.

The study does not explain why white construction workers would receive higher compensation, said Lee Friedman, assistant professor of environmental and occupational health sciences at UIC and lead author of the study.

"One explanation is that there is some systemic bias or prejudices occurring within the system," he said. "Or, it could be that the level of information and knowledge about how the system works – and what can actually be litigated, disputed, or requested for compensation – might vary by ethnic group."

January 11, 2012

Immigrant farm workers in New Mexico given a legal boost

A state court in New Mexico ruled that the legal exemption of most farm workers is unconstitutional. I expect that well over half of these workers are immigrants.

New Mexico 2nd Judicial District Judge Valerie Huling said Dec. 27 in an opinion in Griego et al. v. New Mexico Workers' Compensation Administration that agriculture is the only industry allowed to shift the burden of injured workers onto taxpayers by not providing workers' compensation coverage.

The distinction used to define who is exempt and who is not exempt comes down to whether the worker is directly involved in harvesting crops or working with animals. For example, a worker picking onions on a farm would be excluded from coverage, but a person who is packing those same onions inside a building on the same farm would be covered by the Act.

The court found this distinction arbitrary and thus unconstitutional.

Many thanks to WorkCompCentral and its CEO David DePaolo for permission to run the complete story on his web-based service.

The article in full:

NM Case Makes Clear Work Comp Can't Discriminate Arbitrarily

Workers' compensation is a creature of statute. We're constantly reminded of that. But even though statutorily created, rules of fair play and application still apply - in other words the laws of any particular state must still meet constitutional standards.

In New Mexico a court ruled that a statute enacted in 1917 that excludes farm and agricultural workers from the New Mexico Workers' Compensation Act is unconstitutional.

Continue reading "Immigrant farm workers in New Mexico given a legal boost" »

December 11, 2011

Questionable coverage by workers comp for migrant workers

According to Caitlin Fairchild, only 13 states require employers to cover seasonally agricultural workers in the same way as other workers, and 16 states do not. The remaining 21 states’ laws are apparently not clear-cut as to coverage. Farmers have tried to stay exempt from workers compensation laws in their states.

She cites two organizations as resource for more information about the laws in particular states. Farmworker Justice is working with other groups to improve workers' access to workers’ compensation benefits. It is working with the Migrant Clinicians Network to educate clinicians about the workers’ compensation system so that more clinics are able to handle such cases.

Fairchild reports:

Specifically, only 13 states, the District of Columbia, Puerto Rico and the Virgin Islands require employers to cover seasonal agricultural workers to the same extent as all other workers. These jurisdictions are: Arizona, California, Colorado, Connecticut, the District of Columbia, Hawaii, Idaho, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, Ohio, Oregon, Puerto Rico and the Virgin Islands. In an additional 13 states (including Florida and New York), only small farmers are exempt from providing coverage to their migrant and seasonal farmworkers. Moreover, employers who hire legal temporary foreign workers under the H-2A visa program are required to provide workers’ compensation insurance or equivalent benefits to their employees.

By contrast, 16 states do not require employers to provide any workers’ compensation insurance for migrant or seasonal farmworkers. These states are: Alabama, Arkansas, Delaware, Georgia, Indiana, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, South Carolina, Tennessee and Texas. In an additional eight states, coverage is limited to full-time workers (e.g., Maine), workers in specialty jobs (e.g., South Dakota), or those employed on large farms (e.g., Rhode Island).

March 3, 2011

The immorality of denying workers comp benefits to illegal workers

Mark Noonan, a very smart workers compensation professional, weighed in today on the issue – legal and moral – over withholding workers compensation benefits from undocumented workers. Here is his column in Risk & Insurance Magazine:

Raising Debate Beyond the Borders

By Mark Noonan

By taking one simple pass through any news source, it's obvious that we have a growing national dilemma with immigration--an issue that becomes more heated and emotional as the subject of workers' compensation for undocumented workers is brought into the debate.

The issue of workers' compensation benefits becomes complex as state statutes clash with the federal immigration law. Under federal law, undocumented immigrants cannot lawfully work in the United States and employers are prohibited from knowingly hiring them. Once hired, however, most states do provide workers' compensation benefits regardless of immigration status.

Wyoming is currently the only state that has a statute prohibiting illegal immigrants from receiving workers' compensation benefits. Georgia, Montana, New Hampshire, Ohio and South Carolina are considering passing bills that would deny workers' compensation benefits to undocumented workers. The state of Arizona has unsuccessfully introduced bills the past two legislative sessions. Silent on the issue are Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin.

All other states expressly include undocumented workers in their workers' compensation statues.

State workers' compensation laws are designed to provide (among many other things) wage replacement for periods of disability caused by workplace injuries or illnesses, and promote return to work if possible. Although federal law can still impact what benefits they may receive, courts have generally ruled in favor of entitling workers' compensation benefits to the undocumented worker, some with limitations. Courts in California, Nebraska, and Oregon, for instance, have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.

We may begin to see fewer differences between state and federal law. On December 23, 2010, in the case Asylum Company and Insurance Designers of Maryland v. District of Columbia Department of Employment Services, the District of Columbia Court of Appeals ruled that an undocumented worker is entitled to temporary total disability benefits.

The District's administrative law judge found the undocumented worker, Palemon Cassarubias Gonzales, was eligible for workers' compensation. On appeal, the employer argued that the federal Immigration Reform and Control Act of 1986 (IRCA) pre-empted the workers' compensation law. IRCA bars employers from hiring individuals, including illegal aliens, who are not entitled to work in the United States. The employer, who did not know his employee was illegal, argued that IRCA makes an undocumented workers' hire illegal and bars him from receiving workers' compensation benefits.

Because other state court rulings have observed that, by not providing benefits to undocumented workers, some employers could exploit a financial incentive to hire them in the first place knowing they may not have to pay workers' compensation benefits, the District of Columbia Court of Appeals ruled that it could not find a reason to disagree with other state court. In spite of the IRCA argument, it upheld the previous decision to provide Gonzales with benefits.


Over the past two years, the government has stepped up enforcement for employee verification. The Department of Homeland Security views E-Verify as a critical step to keep employers in compliance with immigration employee verification requirements. An Internet-based system, it compares information to confirm whether or not a job applicant is a legal U.S. resident.

It's a good concept, but E-Verify alone will not force an undocumented worker to leave the country or to stop pursuing employment with false identification. It is a misplaced effort that doesn't address the problem for employers: What to do with an injured undocumented worker.

There are more than 8 million undocumented workers and, whether the employer is aware of their illegal status or not, the injured worker deserves to be covered by workers' compensation benefits. Legally and morally, it is the right thing to do.

As we celebrate the 100th anniversary of workers' compensation, let's not forget the intent-- providing injured workers with benefits to assist them as they recover, while freeing the employer from the threat of litigation, thus allowing both sides to achieve a positive result.

I've never seen anything to suggest that someone should be excluded from receiving medical and indemnity benefits because of their citizenship status. It's inappropriate and, in my opinion, discriminatory.

MARK NOONAN is a managing principal and the senior knowledge manager for workers' compensation for the Casualty Practice within Integro Insurance Brokers.

The opinions expressed in this column are the author's and do not reflect the position of this publication or Integro Insurance Brokers.

Continue reading "The immorality of denying workers comp benefits to illegal workers" »

February 5, 2011

States may bar workers comp for illegal immigrants

This is a refrain from recent years: state legislators who want to screw illegal workers who are injured or die on the job. Not only do these proposals violate a standard of fairness, but they threaten to open employers up to tort suits outside the workers comp system. Very capable Henry Ceniceros of Business Insurance describes proposals in Georgia, Montana, New Hampshire and South Carolina.

His article in full.

States may bar comp for illegal immigrants
Roberto Ceniceros

With conservative lawmakers in control in several states, more legislation is being introduced that would deny workers compensation benefits to illegal immigrants who are hurt on the job. And while such efforts have failed in recent years, today's changed political climate could result in some of that legislation becoming law this time around, some say.

Bills that would bar illegal immigrants from collecting workers comp benefits are pending in Georgia, Montana, New Hampshire and South Carolina.

There is growing demand from legislators and their staff for information on barring illegal immigrants from collecting workers comp benefits, said Ann Morse, program director, immigrant policy project for the bipartisan National Conference of State Legislatures in Washington.

“It seems to be making a resurgence this year,” Ms. Morse said. “It just seems like it's heating up right now.”

Continue reading "States may bar workers comp for illegal immigrants" »

December 16, 2010

Will New Mexico farm workers finally be covered by workers comp?

Kudos to Workcompcentral for reporting on the struggle to provider workers compensation coverage to farm workers in New Mexico. Failure to cover farm workers is one of the scandals of the current workers comp system in the country (Many states do fortunately cover these workers).

Public interest lawyers filed suit to declare the lack of coverage in New Mexico as unconstitutional.

Read the Workcompcentral article below. Republished with permission, www., a workers' compensation subscription news service.

Farm Labor Comp Exemption Still Being Targeted: Top [2010-12-16]
By Greg Griggs, Editor

A New Mexico lawmaker said Wednesday he's wrestling with whether to reintroduce a bill he's backed for the past two years with no success — a move to require the state's agricultural industry to provide workers' compensation insurance to farm workers.

Rep. Antonio Lujan, D-Las Cruces, said he may decide to hold off on bringing up the bill next month when the Legislature reconvenes in Santa Fe. The bill would apply to farms with three or more non-family employees.

"Truthfully the best we could hope for would be a debate on the House floor and that's as far as it would go," Lujan said. "But I am determined. If they go the litigation route and win, they would still have to provide coverage."

Lujan was referring to a lawsuit filed by the New Mexico Center on Law and Poverty in August 2009 on behalf of several workers, including two who are U.S. citizens, who claim they have gotten little or no assistance for medical bills or lost wages after being disabled by on-the-job injuries.

The lawsuit argues that the state Workers' Compensation Act violates the equal protection clause of the state constitution by excluding farm workers from benefits. The case remains in the discovery phase.

Currently, the state's workers' comp system excludes farm and ranch workers, domestic servants, real estate salespeople and workers in companies with fewer than three employees.

Just last month, the Advisory Council on Workers' Compensation and Occupational Disease Disablement voted to support the Lujan bill to remove the farm worker exclusion. This week, the council voted not to endorse plans to remove the exemptions for domestic workers and real estate agents.

Continue reading " Will New Mexico farm workers finally be covered by workers comp?" »

August 5, 2010

Ohio legislation to bar illegal workers from collecting workers comp

According to Risk & Insurance Magazine, the Ohio Senate approved a bill aimed at preventing illegal immigrants from collecting workers compensation benefits.

Lawmakers voted 21-12 to pass S.B. 238, sponsored by Sen. Bill Seitz, R-Cincinnati. Ohio law permits minors and aliens to receive workers' comp benefits but does not have statutory language in place to block illegal immigrants from receiving awards. Language already exists blocking undocumented workers from collecting unemployment and Medicaid payments. Seitz noted that the Bureau of Workers' Compensation doesn't require injured employees to document their status prior to receiving benefits.

Under the legislation, injured employees would be required to prove that they are legally permitted to work in the country by providing a visa or birth certificate.

February 17, 2010

injury in migrant housing covered by workers compensation

Frantz Pierre lived in his employer’s tin-roofed barracks while doing seasonal work. He could not afford to live anywhere else. He hurt his ankle through an accident while living in the barracks. That was in 2003. The South Carolina Supreme Court just ruled that his employer’s workers compensation policy had to pay for Pierre’s medical treatment and disability.

It took seven years for this elemental matter of employer accountability to be established. This is a case study of the law’s delay in righting the scales of justice.

Roberto Ceniceros reported on this case in Business Insurance.

The article in full:

Migrant worker's injury in company housing ruled compensable

By Roberto Ceniceros

COLUMBIA, S.C.—A fractured ankle a migrant worker received while living in employer-provided housing arose in the course of employment and is compensable, the South Carolina Supreme Court has ruled.

The Tuesday decision in Frantz Pierre vs. Seaside Farms Inc. and American Home Insurance Co. overturned rulings by the South Carolina Workers' Compensation Commission and a circuit court, which decided that Mr. Pierre's 2003 ankle injury was not compensable because he was not at work.

The accident occurred the evening before his first day of work.

The commission and lower court also found that the seasonal worker hired to perform duties in a packing house was not required to live in the employer-provided housing, which court documents describe as a tin-roofed barracks.

But the South Carolina Supreme Court disagreed in remanding the case for further proceedings.

It said that Mr. Pierre' injury, which occurred when he fell on a sidewalk where water was flowing from an outdoor sink used to wash clothes, occurred as a result of a hazard on his employer's property.

“Thus, the source of the injury was a risk associated with the conditions under which the employees were required to live,” the state Supreme Court ruled. It also said Mr. Pierre essentially was required to live on the grounds because he and other migrant workers employed by Seaside “did not earn enough to obtain housing, and short-term rentals that coincided with the time they would be in the area did not exist.”

In addition, the nature of the job required workers to live near the packing facility and the living arrangement was convenient for the employer's work schedule that varied with weather and crop conditions.

In reaching its conclusion, the South Carolina Supreme Court cited similar decisions in Florida, New Mexico and Oregon that relied on a “bunkhouse rule.”

“We find the reasoning in these cases persuasive and that they represent the modern view in employee-residence jurisprudence,” the South Carolina high court ruled.

The bunkhouse rule requires compensating employees who are injured while on an employer's premises if an employment contract or the necessity of work requires them to be there. The rule generally requires contemplating whether an employee's use of the premises constitutes a portion of their compensation, court records state.

November 13, 2009

High injury rates among hotel housekeepers

Henry Ceniceros of Business Insurance alerted me to an article in the New York Times about injury rates among housekeeping workers in the hotel industry. Hispanic women have the highest injury rate – over 10% of them are injured every year.

The Times article refers to a research study. Here is the abstract: OSHA log incidents from five unionized hotel companies for a three-year period were analyzed to estimate injury rates by job, company, and demographic characteristics. Room cleaning work, known to be physically hazardous, was of particular concern. A total of 2,865 injuries were reported during 55,327 worker-years of observation. The overall injury rate was 5.2 injuries per 100 worker-years. The rate was highest for housekeepers (7.9), Hispanic housekeepers (10.6), and about double in three companies versus two others. Acute trauma rates were highest in kitchen workers (4.0/100) and housekeepers (3.9/100); housekeepers also had the highest rate of musculoskeletal disorders (3.2/100). Age, being female or Hispanic, job title, and company were all independently associated with injury risk.

High injury rates among hotel housekeepers have been reported elsewhere – for example here.

The article in full:

Female Hotel Workers Injured More Than Men, Study Shows

Published: November 10, 2009

A new study of workers at 50 hotels in the United States found that women were 50 percent more likely to be injured than men, and that Hispanic women had an injury rate two-thirds higher than their white female counterparts.

The injury rate is higher for female hotel workers because many work as housekeepers, the most injury-prone job.

The study, which will be published in January in The American Journal of Industrial Medicine, said the injury rate was higher for female hotel employees because they worked disproportionately as housekeepers, which is the most injury-prone hotel job.

Continue reading "High injury rates among hotel housekeepers" »

December 16, 2008

New court ruling: illegal worker eligible for permanent disability award

As reported by Roberto Ceniceros in Business Insurance Magazine, an Illinois appellate court has ruled that an illegal worker can be awarded permanent disability benefits for a work injury. Some state courts have ruled against permanent awards, or even vocational rehabilitation (a Nebraska case), for illegal workers by observing that these injured workers are not legally able to work. But this court has said that the worker may be able to work elsewhere in a legal status and the disability would prevent that work.

The article in full:

CHICAGO—Employers can't deny permanent total disability benefits for illegal immigrants on the basis that their immigration status would prevent them working in the United States legally, a state appeals court ruled.

In Friday's decision, Illinois' 1st Judicial District Appellate Court also said it agreed with appeals courts across several other states that "have almost uniformly held" that the Immigration Reform and Control Act of 1986 does not preclude awarding workers comp benefits to illegal immigrants.

The case of Economy Packing Co. vs. Illinois Workers' Compensation Commission dealt with Ramona Navarro, a Mexican national who slipped and injured herself in May 2002 while working on an assembly line, court records state.

An arbitrator awarded her temporary total disability benefits of $147 per week for 60 weeks and permanent total disability benefits of $371 per week for life. The arbitrator also ruled Ms. Navarro to be an "odd-lot" worker, meaning she is permanently and totally disabled and her limited skills would prevent her from finding future work.

The Illinois Workers' Compensation Commission and a trial court agreed and Economy appealed. The employer argued that "undocumented aliens" are always unemployable because of immigration law regardless of their physical capabilities. In order to receive permanent total disability benefits under an odd-lot theory, Ms. Navarro therefore needed to prove that she is not employable due to age, training, education or experience, Economy argued.

The appeals court disagreed.

It found that although immigration law prevents Ms. Navarro from legally working in the United States, she would still be able to work elsewhere had she not sustained an injury on the job.

It also found that an employer has the burden of producing "sufficient evidence that suitable jobs would be regularly and continuously available to the undocumented alien but for her legal inability to obtain employment."

December 1, 2008

Medical care for badly injured illegal workers

Robert Ceniceros of Business Insurance has written an informative article about some of the barriers to ensuring that illegal workers who are injured at work obtain the medical care they need. Language barriers, poor housing conditions, false addresses and IDs, and suspicions create problems, according to care managers.

The article:

Illegal workers pose comp care challenges

By Robert Ceniceros

Cultural, administrative issues test case workers

Guiding illegal immigrants injured on the job to appropriate medical care requires workers compensation case managers and claims handlers to take on the role of social worker, detective and translator.

Even delivering indemnity checks often presents additional challenges when injured workers reside in the country illegally, the claims and case managers say.

Still, experts say, comp claims for illegal immigrants must be managed effectively to ensure that treatment is delivered before medical conditions worsen and drive up claims costs, and before attorneys become involved.

Claims managers say they face numerous hurdles when they try to contact illegal immigrants injured at work. Fraudulent Social Security numbers are common, home addresses are wrong, and the workers and their families often are distrustful and unwilling to provide necessary information, fearing immigration authorities may become involved.

Continue reading "Medical care for badly injured illegal workers" »

October 19, 2008

New analysis of workers comp laws and illegal workers

Here is the headline: “Most States Allow Benefits for Illegal Aliens, but Restrictions Abound”. WorkcompCentral (subscription required) ran an article about a new study done on state policies with regard to allowing illegal workers benefitsThis study is exceptional in value because it surveys not only statutes but many key court decisions. The study was prepared by the Independent Insurance Agents and Brokers. Good for them!

The news article:

Only one state - Wyoming - has a statute that directly prohibits illegal aliens from receiving benefits, but court decisions around the country have narrowed the scope of benefits allowed for undocumented workers, according to a report from the Independent Insurance Agents and Brokers of America.

The IIABA report, called "Workers' Compensation and Illegal Aliens," shows that 38 states offer at least some type of benefits to illegal aliens. The report, designed as a chart showing each state's stance on the issue, also notes the various factors that can be considered when the courts hear claims by workers who obtained their jobs using false documents or fake Social Security numbers.

Continue reading "New analysis of workers comp laws and illegal workers" »

July 8, 2008

NY state illegal worker denied work rehab benefits

Thanks to Workerscompinsider for reporting on the workers comp case of Ronnie Ramroop, an illegal immigrant who lost two fingers in an accident in New York in 1995. The State Cort of Appeals denied in late June his access to further rehabilitation, saying that his illegal work status makes him ineligible. Previously, New York courts have been fairly friendly to illegal workers. This line of reasoning has be adapted by courts in some other states” that immediate care is OK, but not ongoing rehab.

Below is an article published in the New York Times:

Undocumented Worker Ineligible for Additional Benefits: Courts [06/27/08]

New York’s highest court, the Court of Appeals, issued a 5-2 decision Thursday holding that an undocumented worker is not eligible for additional vocational rehabilitation benefits after his permanent disability award was paid in full because his illegal status makes him ineligible to work in the state.

Continue reading "NY state illegal worker denied work rehab benefits" »

May 25, 2008

Grey market employer crackdowns and illegal workers

Massachusetts, California and Connecticut to taking more pains to find employers who are not paying workers compensation and unemployment insurance – and quite often hiring illegal workers in an exploitative manner.

Massachusetts has launched a Joint Task Force on the Underground Economy and Employee Misclassification. One of the task force’s main targets are employers to don’t buy workers compensation insurance. Under Governor Duvall Patrick, the state administration is not trying to root out illegal workers, but rather to protect workers regardless of legal status. The Pew Hispanic Center estimated in 2005 that MA had about 165,000 illegal workers (see “popular posts” for illegal workers by state).

Google for the task force’s website for more information. I can't seem to load the URL.

The California’s Workers’ Compensation Enforcement Collaborative is partly a brain child of Bill Zachry, risk manager of Safeway, the state’s largest for profit employer. Zachry is also not trying to root out illegal workers, but rather to crack down on abusive employers. To contact the collaborative, which does not have a website, contact Krystal Tena, Watsonville Law Center, Watsonville, CA 831-722-2845 The Watsonville Law Center is a rural legal aid organization with a special commitment to protect low income workers. CA was estimated in 2005 yo have 1,800,000 illegal workers.

Connecticut, in contrast, is after illegal workers. It figured out that many of them work for employer who cheat on workers compensation insurance, and the state is going after these employers with the intent on finding illegal workers. CT was estimated in 2005 to have about 50,000 illegal workers.

February 19, 2008

House of Raeford Farms: three quarters of workers are Hispanic

Earlier I posted about occupational safety horrifics at this large poultry processor in North Carolina. The Charlotte Observer ran a six part series on breakdowns in safety involving plant managers and state safety regulators.

One of the reporters, Peter St. Onge told me that most of the workers are Hispanic.

A passage from the articles:

In the early 1990s, when another company owned the Greenville plant, most workers were African Americans. Now, most are Latino.

"We can only hire those who apply to work for us, and at the moment between
85 percent and 90 percent of our job applicants are Latino," said Greenville
complex manager Barry Cronic in a written response.

Undoubtedly many of these workers are illegal, and their reward from the expose ironically will be their fleeing from their work or deportation.

This is the toxic cocktail of employers wanting to hire undocumented workers and then cheasting on safety and/or workers compensation rules. A guest worker program will abolish this cocktail.

Go here for the latest article which deals with reaction from Congress and concerns about the illegal status of workers.

February 16, 2008

Expose of immigrant worker poultry factory injuries in North Carolina

The Charlotte Observer has run a series of articles on poultry worker injury in North Carolina. Go here for the entire series. It focused on two companies, Tyson Foods and House of Raeford Farm, and ot weak regulators. House of Raeford Farms is one of the largest poultry processing companies in the country. For a period of four years, it did not report a single musculoskeletal disorder among its 800 person workforce. For these and other incredible stories, read this one of several articles in the series:

In an industry rife with danger, House of Raeford Farms depicts itself as a safe place to work. Company records suggest relatively few workers are injured each year as they kill, cut and package millions of chickens and turkeys.

But an Observer investigation shows the N.C. poultry giant has masked the extent of injuries behind its plant walls.

The company has compiled misleading injury reports and has defied regulators as it satisfies a growing appetite for America's most popular meat. And employees say the company has ignored, intimidated or fired workers who were hurt on the job.

House of Raeford officials say they follow the law and strive to protect workers.

But company and government records and interviews with more than 120 current and former employees show:

• House of Raeford's 800-worker plant in West Columbia, S.C., reported no musculoskeletal disorders over four years. Experts say that's inconceivable. MSDs, including carpal tunnel syndrome, are the most common work-related injuries afflicting poultry workers.

• Its Greenville, S.C., plant has boasted of a five-year safety streak with no lost-time accidents. But the plant kept that streak alive by bringing injured employees back to the factory hours after surgery.

• The company has broken the law by failing to record injuries on government safety logs, a top OSHA official says.

• At four of the company's largest Carolinas plants, company first-aid attendants and supervisors have dismissed some workers' requests to see a doctor -- even when they complained of debilitating pain.

Continue reading "Expose of immigrant worker poultry factory injuries in North Carolina" »

February 6, 2008

Michigan law and undocumented workers - contending proposals

Workcomcentral (subscription required) reports of Michigan bills to restore benefits to undocumented workers. “Two Detroit lawmakers have introduced legislation that would allow all workers in Michigan who pay into the workers' compensation fund to receive benefits if they are injured on the job, regardless of their U.S. residency status, nullifying a state Supreme Court ruling.”

But an official with the Michigan Chamber of Commerce said Wednesday that the proposal would result in a “mixed message” being sent to the state’s employers, since lawmakers also are considering legislation that would prohibit employers from hiring undocumented workers and impose penalties on businesses that violated that prohibition.

Majority Floor Leader Steve Tobocman (D) and Sen. Hansen Clarke (D) filed their proposals as House Bill 5572 and Senate Bill 997, respectively.

Continue reading "Michigan law and undocumented workers - contending proposals" »

January 21, 2008

Illegal worker in Rhode Island wins workers comp award

Edgar Velásquez, an illegal Mexican immigrant who accidentally slashed his face open with a chainsaw in 2006, on January 14 won a $30,000 settlement in a groundbreaking case against the owner of a Rhode Island tree service company. I have posted on this case several times. Thanks to Global Workers Justice Alliance for alerting me to this recent development. Velasquez is back in Mexico. Let’s hope he actually receives the award that he won.

The complete story from the Providence Journal:

PROVIDENCE — Edgar Velásquez, an illegal Mexican immigrant who accidentally slashed his face open with a chainsaw in 2006, yesterday won a $30,000 settlement in a groundbreaking case against the owner of a Warwick tree service company.

Velásquez was working for William J. Gorman Jr., owner of Billy G’s Tree Care, who hired the 22-year-old and then turned his back after Velásquez sustained severe injury.

Velásquez alleged that Gorman tipped off immigration authorities, who arrested and deported him before he could pursue his rightful claim under state law. Last fall, one year after his deportation, the U.S. Department of Homeland Security granted Velásquez a rare humanitarian visa that allowed him back into the country to face Gorman in court.

Chief Workers’ Compensation Judge George E. Healey Jr. said the settlement should put employers on notice.

“I think that it’s important that employers realize they cannot employ undocumented workers without consequence,” Healey said.

“My concern in this whole process is that unscrupulous employers will assume that they don’t have to provide a safe workplace and don’t have to be answerable for injuries which occur in the workplace,” he said. “And the resolution of a case like this demonstrates otherwise.”

Velásquez was not in court to hear the news. He returned to Mexico last month, after a three-month stay on his humanitarian visa.

Continue reading "Illegal worker in Rhode Island wins workers comp award" »

November 27, 2007

Florida employer scam involving illegal workers

Workcompcentral, a subscription based news service, reported today on a conviction of a $17 million payroll scam by a Florida construction contractor. It paid its workers in cash to avoid paying federal taxes. Besides this scam, it appears to have cheated on its workers compensation insurance. We see here again the toxic cocktail of employers using undocumented workers and cheating on tax and insurance obligations. Florida’s Department of Financial Services and California’s Insurance Commission Fraud Assessment Commission have both focused in a serious way to uncover these abuses.

The full article:

Fla. Contractor Underreported Payroll by $17 Million: Top [11/27/07]

A West Palm Beach, Fla. contractor accused of using check cashers as phony subcontractors was convicted by a federal jury last week of underreporting payrolls by more than $17 million over more than a decade.

Lucky Mata, 47, the owner of Kodiak Construction and Management, was convicted last Wednesday on ten counts of conspiracy, filing false payroll tax returns and obstructing a federal grand jury inquiry following a nine-day trial in Miami.

The case is part of an ongoing investigation into payments of cash to undocumented construction crews by contractors seeking to avoid the payment of benefits, including workers' compensation premiums.

The Mata case, which stems from a June 15, 2006, indictment by a grand jury in Miami, did not result in charges involving workers' compensation insurance.

Continue reading "Florida employer scam involving illegal workers" »

November 5, 2007

Case study of work injured immigrant who was deported

File a Claim, Get Deported? A new U.S. Census report says that almost one in five people living in the United States speaks a language at home other than English. For a while, Edgar Velazquez was one of them. But that was before the native of Chiapas, Mexico, was deported to his home country.

This is a column I have written for Risk & Insurance Magazine.

His misadventures in workers' comp land while he was in the United States serve as stark reminder of the plight of illegal workers who are injured on the job.

Of the 37.5 million foreign-born persons living here, 12 million are without documentation. Before U.S. Immigration and Customs Enforcement deported him in August, this 22-year-old from a mountain hamlet was one of 7.5 million people working here illegally.

I've followed his story through WorkCompCentral's online daily news service and The Providence Journal. What he's gone through speaks volumes about the perils of keeping 5 percent of our workforce in legal limbo.

In 2005, Velazquez paid a transporter --a "coyote"--to help him sneak into the United States. He got to Rhode Island, where his uncle helped him find work in landscaping. According to the Washington, D.C.-based research group the Pew Hispanic Center, one-quarter of that industry is staffed by illegals.

On March 31, 2006, while employed by Billy G's Tree Service in Warwick, R.I., Velazquez was cutting a tree limb when his chainsaw kicked back and slashed his face. Velazquez says company owner, William Gorman, refused to give him aid; so he and a co-worker called 911. Surgeons performed emergency reconstructive surgery.

Velazquez's wounds have largely healed, but he suffers from permanent nerve damage. His situation, although tragic for him, provides a case study for the rest of us.

Illegal workers often have no idea about their workers' compensation rights. Hospitals and clinics typically assign them a free care account due to their lack of money. It's not unusual for an illegal to take months to recover from a serious injury before realizing that they can submit a claim. That's the path Velazquez took in early 2007, when he retained a lawyer.

On Aug. 2, the lawyer was in a Providence courthouse when ICE arrested Velazquez outside. After time in ICE detention centers in Massachusetts and Texas, Velazquez was dumped on the Mexican side of the border.

Gorman denies that he informed on Velazquez, but he's got his own problems: He had no workers' comp insurance. Hiring illegal workers and skipping workers' comp is a toxic cocktail throughout the country. The state is now asking Gorman to pay up to $1,000 for each day he operated his business without cover.

With no uninsured injured worker fund in Rhode Island, that means Velazquez' only resource may be Gorman's liability policy. But how can Velazquez sue Gorman from Mexico?

That question is being answered at two levels. Global Workers Justice is promoting better access to American courts for workers like Velazquez. Most states grant illegal immigrants employment rights. But the plaintiffs have to be here to state their case.

As for Velazquez, in September, through the intercession of Nevada Senator Harry Reid, ICE permitted him a brief "humanitarian" return the to United States. Velazquez's lawyer is also pressing the workers' comp claim against Gorman.

Whether Velazquez will ever be fairly compensated remains to be seen. But his case is just one of what must be many, and I estimate that half of them go unreported. For those who do report cases, the frequent lag in their reporting and the deportation risk present them with obstacles as dreadful as Velazquez' chainsaw.

October 15, 2007

Don’t get a work injury if you live in Arizona…

…and are an illegal immigrant. It can also be very costly to the employer. Apparently businesses are penalized now, in fact can be put out of business, if they hire illegal immigrants, but workers comp benefits still apply to these workers. Some in the legislature aim to strip workers comp benefits from illegal workers.

Illegal immigrants who have jobs in Arizona are covered under the state's workers' compensation system, and businesses want it to stay that way -- despite a new state law that can put them out of business for hiring undocumented workers.

This from the Phoenix Business Journal….

If illegal labor were excluded from the state's workers' comp umbrella, that could leave injured migrant workers without care and create a morass of legal troubles for businesses that unlawfully employ illegal immigrants.

"It definitely opens up an entire can of worms, and employers are definitely aware of that right now," said Abbe Goncharsky, an employment attorney with the Phoenix law office of Lewis and Roca LLP.

There were efforts this year at the state Legislature to exclude illegal immigrants from workers' comp benefits, and the contentious issue is expected to come up again in 2008

July 19, 2007

Review of workers compensation coverage of illegal workers

A recent article in the quarterly journal of the International Association of Industrial Accident Boards and Commissions (IAIABC) reviews statutes and court decisions regarding workers comp coverage of undocumented workers. I have placed the entire article below – it is part I; part II is yet to appear. The authors say that 6 states have statutes that expressly authorize coverage for these workers – CA, FL, NV. NY,TX and UT, while two states’ laws expressly do not – ID and WY. Twelve states have had court decisions in favor of coverage – IL, MI, MN, ND, OH, AL, AZ, CO, MT, NC, SC and VA. Two of these states – MI and VA – also have court decisions going the other way. Two other states have had court decisions which go against coverage -- KS and PA.
You ought to consider this list giving a rosier picture of coverage than is the case, because some states, notably NY, constrict the benefits of these workers, though not denying them outright.

By Thomas R. Lee and Dennis V. Lloyd

Illegal immigration is a hot-button issue that has spawned a wide range of legal and public policy questions -- including questions regarding workplace injuries involving undocumented workers. The threshold question is eligibility for workers' compensation benefits, which is a matter of state law.

Coverage of Illegal Aliens under Workers' Compensation Statutes in Various States

Continue reading "Review of workers compensation coverage of illegal workers" »

July 3, 2007

Workers comp protections for illegal workers cut in New York

This is what the failed immigration reform bill was intended to prevent – a bifurcation of the nation’s worker protections into two systems – one for legal, the other for illegal workers. Judges, policymakers and practitioners are aware that by weakening protections for illegal workers, long term damage to the entire system of protections happens.

Thanks to, I learned that a New York appellate court ruled that illegal workers are ineligible for one form of workers compensation benefit: the so-called “additional compensation” to make up for earnings capacity loss when there is at least a 50% permanent reduction in earnings loss.

The case decided in June was Ramroop v. Flexo-Craft Printing Inc., 501026, 06/21/2007.

Says Workcompcentral, “In 1995, Ronnie Ramroop sustained a work-related injury to his right hand and was awarded a 75% schedule loss of use of his hand. In 2002, Ramroop requested his case be reopened to see if he was entitled to additional benefits provided for workers with at least 50% loss of use of a hand, which Workers' Compensation Law Section 15 allows.”

The court ruled that because the worker in question was not legally able to work, his earning capacity was reduced – in fact, eliminated – by his illegal status, so that whatever learning loss he sustained from work injury was not the sole reason for earnings loss. Therefore the worker did not meet a criterion for more additional compensation that the injury itself must by be the sole reason for earnings loss.

This could be the start of a turn in judicial oversight that would eclipse a 2006 decision. In July 2006, in Jose Hernandez v. Excel Recycling Corp., the 3rd Division Appellate Court ruled that a policy of disregarding immigration status in determining eligibility for workers' compensation benefits can be upheld, regardless of federal immigration law.

April 27, 2007

Can OSHA protect low wage immigrant workers?

This is a question we have to ask after its abject failure to address toxic exposures in microwave popcorn plants, as described this week in the New York Times. “The people at OSHA have no interest in running a regulatory agency,” said Dr. David Michaels, an occupational health expert at George Washington University who has written extensively about workplace safety. “If they ever knew how to issue regulations, they’ve forgotten. The concern about protecting workers has gone out the window.”

Sure, OSHA has made efforts, including some alliances with local organizations close to immigrant-driven industries such as home building. I have posted on some in the past. But like much of America, OSHA seems to be unable to grasp the significance of the huge multi-lingual labor presence in our economy. Mentally, the country thinks as if a tiny fraction of workers are immigrants. Well, over 12% are, and in numerous job sectors the percentage is over 50%.

A main reasons I strongly support the introduction of a guest worker program is that it will provide a foundation for more focused attention to work protections of immigrant workers – not just currently undocumented workers, but all low wage immigrant workers.

February 26, 2007

California labor law enforcement in the underground economy

There are at least two enforcement efforts at work in California to protect low wage immigrant workers, including illegal workers, from employer abuses. One I have already posted on here – an initiative to combat workers comp fraud. Another is the Economic and Employment Enforcement Coalition. Both of these initiatives enforce state and/or federal employment laws without necessarily closing down the targeted businesses.

Workcompcentral reported today an EEEC action: “Garment Industry Sweep Nets $454,600 in Fines.” The report: “A garment industry enforcement sweep by California's underground economy task force netted $454,000 in fines and found five employers who lacked workers' compensation coverage for 95 employees, the state Department of Industrial Relations announced Friday. The Economic and Employment Enforcement Coalition's (EEEC) Feb. 7-8 sweep resulted in 24 of 32 businesses inspected receiving a notice to discontinue and $454,600 in citations and projected penalties. Inspectors found five businesses that lacked comp coverage for workers.

Those businesses and other garment manufacturers were also cited for a variety of labor law violations.

After the sweep, Korean Garment Industry Association President Steve Kim initiated an outreach seminar to answer labor compliance questions and to help local garment manufacturers into compliance, the EEEC said. The seminar was held Thursday in Los Angeles.

The EEEC presentation included expert speakers from the Division of Labor Standards Enforcement and Division of Occupational Safety and Health. The Employment Development Department and U.S. Department of Labor were also on hand to answer questions and provide information on workplace safety, wage and hour, payroll taxes, registration and other labor-related issues, the coalition said in a press release.

Below is a desription of the EEEC from its website:

Continue reading "California labor law enforcement in the underground economy" »

February 21, 2007

OSHA and regional business association join forces to train Hispanic workers

The following is a press release by OSHA about this training program. Delmarva Safety Association works with Delaware, Maryland and Virginia employers.

The Occupational Safety and Health Administration (OSHA) and the Delmarva Safety Association (DSA) recognize the value of establishing a collaborative relationship to foster safer and more healthful American workplaces. OSHA and DSA hereby form an Alliance to provide DSA members and others with information, guidance, and access to training resources that will help them protect employees’ health and safety, with a specific focus on reducing workplace injuries, illnesses and deaths among the Spanish-speaking workforce. In developing this Alliance, OSHA and DSA recognize that OSHA’s State Plan and Consultation Project partners are an integral part of the OSHA national effort.

OSHA and DSA will work together to achieve the following training and education goals:

* Develop training and education programs on occupational safety and health issues specifically targeted to employers of Hispanic workers.

* Deliver information for inclusion in safety and health training for supervisors that addresses important cultural considerations and sensitivities.

* Deliver or arrange for the delivery of safety and health training which address these cultural considerations.

See below for the complete press release:

Continue reading "OSHA and regional business association join forces to train Hispanic workers" »

February 12, 2007

Contractor insurance fraud and why it matters

Thanks to Workers Comp Insider for alerting me to this Insurance Journal article about building contractors who cheat on their workers comp insurance. Why does this matter for immigrant workers? Because employers who cheat on insurance – buying too little, or none at all – are those mostly likely to hire vulnerable immigrant workers and cheat these workers on other labor rights. The news story said nothing about the composition of the workforce, but I bet a lot of the lower skilled work was being performed by immigrant workers. I call this combination of insurance fraud and employer abuses a toxic cocktail that can kill.

January 29, 2007

Reform proposals to protect workers comp rights of day laborers -- Texas

Below is a press release about proposed legislation in Texas. In that state --uniquely -- employers can opt out of (elsewhere) mandatory workers comp statutes. This increases the vulnerability of immigrant workers. The law would require employers to cover their day laborers with workers comp.

For day laborers who are illegal immigrants, a guest worker program would probably require that they be employees, rather than independent contractors, and that they be covered by workers comp as well as enjoy all other worker rights.

January 24, 2007

Bill Proposes Workers’ Compensation Coverage for Day Laborers

Recent legislation filed by Rep. Eddie Rodriquez (D-Austin) proposes that day laborers could be entitled to workers’ compensation benefits from a day laborer employer. This legislation tracks the stated goals of the Texas AFL-CIO and other organized labor groups that are once again pushing for mandatory workers’ compensation coverage during the current legislative session. Texas is the only state where some employers are allowed to opt-out of coverage.

As filed, House Bill 456 calls for day labor employers to be regulated under the authority of the Texas Commission of Licensing and Regulation. Within the actual language of this bill, one key provision states that a day labor employer “is responsible for providing a day laborer with workers’ compensation benefits to the extent required by other law.” Additionally, if this legislation passes, day labor employers would be required to provide a day laborer formal notice by the end of the laborer’s first workday. This notice would have to be in both Spanish and English and would provide notification to the laborer that workers’ compensation benefits are available in case of an injury. If applicable, this notice would also provide the name and telephone number of the employer’s workers’ compensation insurance carrier.

Also, this bill proposes that all day laborers would be required to comply with any safety and health requirements required by employers under other applicable law. Finally, in its current form, this legislation expressly forbids an employer from charging a day laborer for any safety equipment, specific clothing or other mandatory job-related accessories that may be required by law, industry custom, or by any particular employer.

January 25, 2007

NYCOSH online library on immigrant work safety

NYCOSH -- the New York Committee for Occupational Safety and Health -- has created a library online with many reports, news articles, and other materials about the work safety and health of immigrant workers. Most of the material is from 2002 through 2004. It was last updated in 9/06.

NYCOSH was instrumental in making sure medical assistance and worker rights counseling was made available to the 8,000 odd immigrant workers engaged in the rescue and recovery from the 9/11 attack on the World Trade Center.

January 15, 2007

Can a work injured illegal immigrant obtain benefits? In Indiana, it depends

Thanks to (subscription required) I have a case study of the snarl-ups often experienced today when an illegal immigrants suffers a work injury, about which there is no dispute it happened. Her or his payments can still be cut off. A guest worker program will eliminate all of these trap doors, which I have found the large majority of work injury experts are unaware of.

The matter at hand in this Indiana case is whether the injured worker is entitled to benefits after having reached “maximum medical improvement” and is still disabled – that is, simply is not going to get any better. The worker, Benjamin Marrufo, says through his lawyer that he is still not at “MMI.” The problem for him in reaching MMI is that the court may decide (as it appears to in other jurisdictions) that an illegal worker is not eligible for ongoing permanent benefits.

The article says….

Mindel [his lawyer] disputes that his client is at MMI, and said that under Indiana workers' compensation law his client cannot request an independent medical examination because of his illegal status. To be eligible for an independent medical evaluation, an injured worker must have received total temporary disability -- which an undocumented cannot collect under the law, Mindel said, adding that he doesn't expect his client's claim to be a test for the state high court.

Marrufo is a 47-year-old Mexican national who admittedly came to the United States eight years ago. He filed a workers' compensation claim for a May 2006 back injury and received medical benefits.

He did not receive any temporary disability for loss of wages during his recuperation, his attorney said.

Indiana courts have not decided whether undocumented workers are entitled to workers' compensation benefits. State courts in California, New York, Florida, Maryland, Minnesota and Alabama [and other states – PFR]have all ruled that illegal aliens are entitled to medical benefits. Most of the courts, however, have said no to wage-replacement benefits or vocational rehabilitation because the worker is in the country illegally.

A South Carolina lawmaker this year will push to exclude undocumented workers from his state's workers' comp system.

"My bill is a very simple bill," Sen. Jake Knotts, R-West Columbia, was quoted as saying last month. "It says that if a person applies for workman's compensation, they must show that they are a legal citizen."

October 13, 2006

Barriers to occupational health services tolow wage workers in CA

The California Commission on Health and Safety and Workers Compensation, a highly visible state agency, has released its study of “Barriers to occupational health services for low-wage workers in California.” This is the largest scope and best investigated study of its kind. I have previously posted on numerous other more limited studies about garment, hotel and meat processing workers, and day laborers. I have copied below the entire Executive Summary.

This study says several important things either explicitly or by omission. First, work safety and access to workers compensation protections are pervasive problems among low wage workers -- in particular, immigrant workers. The authors are effectively confirming other studies, in this broad and deep examination.

Second, the authors say by their silence that the California state agency with the greatest practical influence over correcting these problems is, well, useless. The authors appeared to have never even interviewed executives at the massive state run State Compensation Insurance Fund. SCIF is by far the largest workers comp insurer in the state, in fact the largest in the world, and whose seven person board includes three union representatives.

I queried the Commission last summer about why SCIF is not even mentioned. I did not receive a direct answer. I am left with the feeling that one state agency, CHSWC, decided that SCIF was useless as either a source of information or as a agency of work safety and workers comp system improvements.

Who are these low wage workers? The authors write, “Officially, over 3.7 million Californians are employed in occupations whose median wage is less than $10 an hour, the definition used in this report to classify workers as “low-wage.” Perhaps as many as two million more may be employed in California’s expanding underground economy. The majority of low-wage workers are nonwhite and immigrants. Typical low-wage occupations in California include restaurant and food service employees, health aides, cashiers, janitors, hotel cleaners, assemblers, security guards, farm laborers, retail clerks and sewing machine operators, among others.

“Overall, nearly two-thirds of the 25 leading occupations reporting non-fatal work-related injuries and illnesses are low-wage occupations. Heavy physical exertion, exposure to toxic substances and blood borne pathogens, repetitive motions performed bent over or in awkward postures for hours and slips, falls and other accidents are some of the common risk factors.”

The Executive Summary:

Continue reading "Barriers to occupational health services tolow wage workers in CA" »

September 16, 2006

An analysis of WC law protections for illegal immigrants

This summer, the American Educational Institute published, for people like insurance claims executives and insurance brokers, an analysis of workers comp benefits for illegal aliens. Here it is.

New article: Illegal immigrants frequently denied compensation

A very well documented story was run on 9/15, by Liz Chandler of McClatchy Newspapers. about problems with access to workers comp protections for immigrant workers -- in particular illegal workers. This is the best national scope journalistic report to date on this problem, which I have often addressed. she writes:

In one national study, university researchers surveyed 2,660 day laborers, most of them working illegally. One in five said he'd suffered a work injury. Among those who were hurt in the last year, 54 percent said they didn't receive the medical care they needed, and only 6 percent got workers' comp benefits. Employers in at least 20 states, arguing that their employees shouldn't receive injury benefits because they're illegal immigrants, have fought and lost in courts and review boards. Among those employees were a California laborer who hurt his back lifting sacks of coffee, an Arizona auto mechanic who was hit in the eye by flying debris, a Maryland carpenter who cut his hand on a saw, and a North Carolina construction worker who suffered a brain injury when he fell 30 feet onto a concrete floor.

the article:

Continue reading "New article: Illegal immigrants frequently denied compensation" »

August 23, 2006

Legal battle over WC coverage for illegal workers in AZ

Workers Comp Insider has done a good job on analyzing the situation in Arizona, where workers comp converage of undocumented workers now appears to hang on whether a comma was needed or not in a law enacted in 1925.

June 21, 2006

Serious breakdown in workers comp for Katrina cleanup

I have been talking with the authors of two studies of immigrant workers engaged in the Katrina cleanup. There are an estimated 10,000 immigrant workers of whom half may be undocumented. Both researchers report that very, very few of their work injuries are handled through the workers comp system. Instead, free care is used. This is a very serious problem. I expect to write more on it as more information becomes available. I have already posted on the published study done by Tulane and UC Berkeley researchers.

March 14, 2006

Study of Hispanic North Carolina Poultry Workers

A September 2005 press release by the Wake Forest University Baptist Medical Center reports that North Carolina poultry workers show a higher than reported rate of work injuries, suggesting a need for uniform enforcement of safety regulations. This study goes along with a study of Oakland garment workers and a study of Las Vegas hotel workers (to be profiled) in describing the working conditions of specific immigrant groups within a specific labor market. All of these studies suffer from a limited understanding of the dynamics of workers compensation. The lead author declined to discusss the methodology problems with this study. Yet it remains a good introduction to immigrant workers in the poultry industry.

The survey was conducted by researchers at Wake Forest University School of Medicine in collaboration with Centro Latino of Caldwell County, Inc. The survey was based on a representative sample of Latino workers in six counties in western North Carolina: Alexander, Burke, Caldwell, Surry, Wilkes and Yadkin.

Poultry processing is the largest and fastest growing sector of the meat products industry, according to the authors. In 2002, North Carolina and four other states accounted for 70 percent of all broiler production in the United States. Many of the workers are immigrants from Mexico and Guatemala, according to the authors.

Continue reading "Study of Hispanic North Carolina Poultry Workers" »

March 1, 2006

Failure of existing guest worker programs as seen in FL figures

The failure of existing guest temporary visa programs can be summarized in these figures: the number of workers under them in Florida is probably equivalent to 1% of all undocumented workers in that state.

These programs are designed to attach each worker to a particular employer for a specified period of time – in months. The Palm Beach Post ran on Dec. 9, 2003, as part of an extensive series on farm labor, an analysis of how the federal governments guest worker provisions for temporary farm labor have worked in Florida. Farm employers rarely use these programs. According to the federal government only 2,423 H2A and H2B visas were issued to Mexican for work in Florida. I have previously estimated, drawing on Urban Institute figures, that as of 1/1/06 there were roughly 600,000 undocumented workers in Florida. Assume that total figure in 2002 was 450,000: H2 visa programs were equivalent to less than 1% of Florida’ undocumented workers.

According to the Post:

Continue reading "Failure of existing guest worker programs as seen in FL figures" »

February 25, 2006

Florida's improves work protections to migrant workers, progess report just out

Facing up to near catastrophic safety events among migrant workers, Florida has since 2004 tried to turn a corner: tougher monitoring, reform of a national class code for death benefits, and a new legislative commission which just issued a report.

Transportation deaths alone would have been a sufficient spur. According to Rural Migration News, in April 2004, nine were killed and 10 injured after their van rolled over four times on I-95 in Fort Pierce. In June 2004, two were killed when a van built for seven, but with 11 workers, overturned; most of the men had no identification.

Florida in May 2004 revived the Florida Agricultural Workers Safety Act (FAWS), which expired in 1998. (See details below). It also corrected an egregious wrong in state law. Citing an award winning Palm Beach Post series in late 2003 (link now dead), Workers Comp Insider reported that state law since the 1920s put death benefits at 50% less if the deceased was not an American or Canadian. In 2003 the legislator upped the U.S/Canadian award from $100,000 to $150,000 – but retained the 50% cut, despite a reported state Supreme Court decision striking it down. Only in 2004 was the wrong corrected by law. The Palm Beach Post reported in 2003 since 1990, nearly 30% of the death cases settled, with the average settlement of $32,000."

The new law creates a Legislative Commission on Migrant and Seasonal Labor to supervise and coordinate migrant labor programs geared to improve worker living conditions, health, housing and sanitation as well as knowledge of labor laws, education, transportation and public assistance. This month (Feb 2006) it issued a
Report to the Legislature.

See my earlier posting on SAFE: Socially Accountable Farm Employers.

According to Rural Migrant News,

Continue reading "Florida's improves work protections to migrant workers, progess report just out" »

Deaths at work: who dies, how

Immigrants fill many high risk jobs, such as in construction, farming and convenience stores. The blog Confined Space does an invaluable service of listing all the work deaths the blogger, Jordan Barab, learns about. In his current posting he records 68 deaths from traumatic events. (Go down 1/3 of the way to "Weekly Toll.") The majority of the deaths are from construction, logging, or farm accidents or by murder. Example of a murder: immigrant worker at a donut shop killed by robber. It's not possible to know fully from his thumbnail descriptions how many were immigrants, legal or illegal.

The Bureau of Labor Statistics says that about 5,700 deaths are occuring at work each year. One researcher, Paul Leigh of UC Davis, estimates deaths at upwards of ten times that -- by counting death from diseases such as the deaths of 400,000 Americans who have or are expected to die from asbestos-related conditions acquired at work, according to a RAND report.

February 24, 2006

H-2A visas - snapshot of wage and worker comp rules

The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The AEWR is established every year by the Department of Labor. For 2005, the minimum wage set by DOL for Washington State is $9.03.

The employer must provide workers' compensation insurance where it is required by state law. Where state law does not require it, the employer must provide equivalent insurance for all workers. Proof of insurance coverage must be provided to the regional administrator before certification is granted.

February 18, 2006

Can illegal immigrants receive workers compensation benefits? MA said, “Yes”.

The Massachusetts Medellin case, finally resolved at the end of 2003, is a good example of how a state can reach a decision that workers compensation laws benefits are available to undocumented workers. Subsequent decisions in other states may have relied on this case. I will report on them later. The MA decision relied on two findings: the validity of employment contracts, and the lack of authority of federal laws over state workers compensation law.

This information is drawn from a 2004 analysis by the National Immigration Law Center.

A cleaner and construction laborer, Guillermo Medellín, sustained lasting injuries when he fell into an eight-foot-deep hole. An administrative law judge for the Department of Industrial Accidents (DIA) ruled that Medellin was eligible for benefits, even after Medellin testified that he was in the country illegally. The insurer then filed an appeal after the U.S. Supreme Court ruled in 2002, in Hoffman Plastic Compounds, Inc. v. NLRB, that an undocumented worker could not receive back pay.

The DIA then affirmed the original decision on the two findings noted above. Below is a summary of its reasoning. :

Continue reading "Can illegal immigrants receive workers compensation benefits? MA said, “Yes”." »

February 17, 2006

Immigrant worker injuries at day labor

According to On the Corner, the nationwide survey of day laborers, almost all urban day laborers are immigrants, and mostly from Latin America. They reported very high injury rates.

75% consider their jobs dangerous
19% had suffered a work injury requiring medical attention.
67% missed work due to a work injury
22% of those injured lost at least one month of work.

By these figures alone it is hard fully to compare their experience with that of native-born Americans in roughly the same occupations. But it would be reasonable to conjecture that immigrant day laborers’ frequency of injuries, and the severity of the injuries, is twice that of native-born Americans.

For earlier postings about On the Corner, go here, here and here.

February 11, 2006

Inconsistent quality of healthcare for work injured immigrant workers

Many low income immigrant workers go to hospital emergency departments and to free care community health clinics with their work injuries. Emergency departments and community health clinics typically do not understand how to determine the occupational cause of injury, and do not try to contact the employer and to make sure that an injured worker accesses the workers comp system.

The clinics in particular often appear to be tone deaf to the special needs of injured workers. Example: I contacted the Joseph Smith Community Health Center in Boston, which actively serves low income immigrants, a dozen times to ask them about how they handle work injuries. To get a response i finally conducted a sit-in in the reception area, refusing to leave until I spoke with some one. Eventually the director of the clinic came downstairs. While pleasant, she showed zero interest in the special needs of injured workers, and in investigating them further.

My several contacts with the Health Resources and Services Administration, the federal agency responsible for providing financial and technical assistance to community health clinics, revealed that this agency has little interest in addressing the special needs of injured workers.

February 9, 2006

Access to medical care denied by ID requirements

Something that American citizens take for granted -- picking up your medical prescription at the pharmacy. Not so if your personal ID is iffy and the state is trying to crack down on medication abuses. This case is from Mississippi.

The state began to insist on personal identification to crack down on drug abuse and by failing to educate pharmacies made life more complicated for innocent undocumented workers. Mississippi recognizes the right of work-injured undocumented workers to protections of the workers compensation system. It introduced drug procedures to help in fraud and abuse control.

Continue reading "Access to medical care denied by ID requirements" »

February 5, 2006

serious worker injuries by ethnic group, job and diagnosis

A commentor wrote to ask if I have for work fatalities of immigrants a breakdown by types of jobs, particular immigrant group most effected, etc. I have an indirect positive answer to this question, in the form of an ethnic analysis of work related hospitalizations. Researchers published in October 2005 a study of work related hospitalizations by ethnic groups in Massachusetts.

According to the authors,

This article reports on the use of statewide hospital discharge data to describe patterns of serious occupational injuries (that is, injuries requiring hospitalization) among racial and ethnic groups in Massachusetts.

The authors present a breakdown of hospitalizations by medical diagnosis, job and ethnic breakdown: white, black, Asian, American Indian, Hispanic, and other or unknown. They were able to show a relationship between the type of job and the type of injury (for instance: burns = restaurant work).

In a later posting I will summerize their findings.

January 31, 2006

IL Governor supports Panel on Latino Work Safety

In late 2005 Governor Rod Blagojevich of Illinois gave his support to the findings and recommendations of a Panel on Latino Workplace Injuries and Fatalities. I will be delivering more information in the future about this panel, the first such major state panel on immigrant work safety to my knowledge. It is a model for other states to emulate.

Go here for the 11/9/05 press release.

According to the press release the Panel’s top five recommendations are:

Creating a Worker Safety Fund to support a collaborative partnership and outreach strategy statewide between community-based organizations and government agencies to, among other things, develop worker safety materials in Spanish and provide health and safety training in Spanish.
Streamlining and coordinating government services for workers and business in the state by relocating the On-Site Safety and Health Consultation team to the Illinois Department of Labor (IDOL) from the Department of Commerce and Economic Opportunity (DCEO).
Strengthening enforcement of the existing Day Labor Services Act, including increased penalties against unlawful day labor agencies, and allowing workers to sue employers for damages.
Developing a statewide data collection system to help centralize and analyze occupational injury and fatality data among Latinos gathered by agencies, community-based organizations, and educational institutions and convene in annual conferences to assess and review data.
Supporting further reforms to the Illinois Workers’ Compensation Act, including 1) establishing a stop-work order when an employer is uninsured; 2) establishing an injured workers’ benefit fund; 3) providing workers’ compensation to agricultural workers; and 4) ensuring adequate workers’ compensation coverage at worksites that use temporary labor.

MA program on employer insurance fraud

Immigrant workers are often exposed to predatory employer practices which violate labor laws. One place to start enforcement is in workers compensation and, in particular, workers comp insurance. Here is good example of state initiative.

Massachusetts’ Department of Industrial Accidents has improved significantly its enforcement of workers compensation insurance requirements in the past few years. Its program, which you can find here, gives you a sense of what it takes to give teeth to enforcement. It has greatly improved the success rate of enforcement.

Below is a excerpt dealing with stop work orders:

The leads can come from an employee of the company, a competitor or the Massachusetts Rating Bureau. The lead is assigned to an investigator in the area where the business is located who then conducts an investigation.
If the investigation confirms that the business is violating the statute, the investigator will notify the business and allow the business to come into compliance. If the business does not respond to the investigator or refuses to come into compliance by obtaining the requisite insurance, the investigator will then conduct an on-site investigation at the location of the business.
If the on-site investigation confirms the preliminary investigation, the investigator will then issue a Stop Work Order (SWO), which is a cease and desist order requiring the business to shut down. The business will then be given a right to appeal the SWO within 10 days.

I thank Workers Comp Insider for alerting me to this article by Gregory White, who as general counsel runs the enforcement operations of DIA.

A number of states have beefed up resources to detect and go after employers to commit labor violations, including failure to pay employees for wages earned, failure to pay overtime, failure to make unemployment insurance contributions, and failure to purchase workers compensation insurance.

January 26, 2006

Employer insurance fraud inflicts damage on workers

A not-for-attribution conversation with The Man Who Saw Everything.

Employer insurance fraud is a topic we will visit often: the toxic cocktail made by mixing strong employer incentives to cheat on workers compensation insurance with a vulnerable workforce, such as undocumented workers. An employer with a vulnerable workforce has a much greater incentive to cheat on insurance because it can expect its undocumented workers not to protest.

Here we learn from a California insurance professional, my Man Who Saw Everything. He has observed employer behavior close up for several decades from the insurer’s perspective. He knows how employers cheat.

He says that to understand the dynamics of cheating you need to know a little about cycles in the California workers compensation insurance market.

Insurance costs fell drastically in the second half other 1990s due to price-discounting competition among insurers. This left some insurers pricing their policies below any rational expectation of breaking even. Eventually some insurers failed. Insurance rates began to rise in the 2000s, to the point where workers compensation premiums in that state were over twice as high as the next costliest state in the nation. This Man Who Saw Everything believes that this huge cycle of high, low, and return to high contributed to the problem of cheating employers.

He told me:

In general, employers in high-risk occupations benefit the most when premiums fall and suffer the most when premiums rise. Roofers are among the hardest hit. While I was working for an insurance company we actually had a recent claim of a Latino worker falling from the tines of a forklift while placing shingles on a roof. This particular employer was covered but I have a roofer friend who has operated his business without WC for the past four years.
The problem is that when insurance rates fell, no employer said to itself, ”Hey, I had better bank some of these savings for tomorrow when rates rise”. Instead, they built their businesses around the lower cost factor for WC. When rates rose, they could choose to buy insurance, charge more and thereby become less competitive, or drop WC and hire workers less likely to file claims.
As to who is looking for the uninsured employers the answer is really no one. They are exposed when they draw a four after expecting an ace. One of the reliable undocumented workers falls off a roof, gets an attorney and files a claim. OSHA inspectors who cite him visit the employer, then the DOI gets involved and eventually the employer just folds his tent. You can bet they re-surface later so any enforcement agency spends considerable time chasing the same individuals.
I think this whole scenario is much more frequent in construction type industries that don’t rely on a brick and mortar location. I don’t know of any light manufacturers that exist without WC. However, I have known many who move employees on and off the books (premium fraud) and many never get caught.
The basic idea is to have two work sites. Insure one of the sites fully and correctly with a carrier but never advise of the other site. If anyone gets injured you list their work site as the one that is insured and put the worker on that payroll.
This usually gets exposed one of two ways. The carrier investigates the claim and learns of the other site when the worker provides the secondary site as the actual place of injury. It also is exposed when the employer repeatedly has workers injured on their first or second day of work. That is the day they moved the employee from one location to the other to assure the worker is covered by the WC.

Florida construction injuries and Hispanics (2005)

Construction Up, Injuries Up, but Workers' Comp Payouts Down

This article by Jessica M. Walker first appeared in the Daily Business Review on 10/20/2005. The following is an excerpt, and the full article can be acessed at the link above. We will be carrying on a regular basis will researched journalism.

This particular articles talks about the toxic cocktail one mixes with undocumented workers with employers in high injjry industries.

In his mid-teens, Hector Noriega moved from Mexico to Miami to find work in South Florida's booming construction industry. The immigrant followed his two brothers, who previously had found construction work there.
In August of last year, while he was pouring concrete at a residential construction site on Key Biscayne, the teenager was seriously injured when he came into contact with an electrical line. He survived the accident but suffered severe burns.
His attorney, Judson Cohen of Cohen Law Offices in Miami, said Noriega might lose his leg from the accident. No longer employable, Noriega, now 16, is living with family in Miami.
Most workers in Florida would have filed a workers' compensation claim, collected a payout, and that would have been the end of it. Noriega, however, is an undocumented alien and was not listed on the workers' comp policy of the subcontractor, C&C Concrete Pumping, or the Miami-based general contractor, Mackle Construction Co.
Ironically, Noriega's illegal status may allow him to proceed with a negligence lawsuit in Miami-Dade Circuit Court when a U.S. citizen or other legal worker generally could not. That could allow him to recover more than he could through a workers' comp claim. There are a growing number of undocumented workers like Noriega laboring in the South Florida construction industry, and experts say the legal situation could arise more often.
As South Florida's construction boom continues, more workers are pouring into the area in search of work. For both legal and illegal workers, the ability to recover damages for on-the-job injuries has been constrained due to a sweeping 2003 revision in the state's workers' comp law that was pushed through by business and insurance groups to curb workers' comp costs, experts say.
Steven Field, a retired University of South Florida professor who formerly directed the Florida Association of Occupational and Environmental Medicine, said he's seen a rising number of construction-related injuries over the past eight years in Florida. But despite the increase, workers' comp payouts are declining.
The total amount of workers' comp claims payouts reported to the state Department of Financial Services fell in Miami-Dade County from $5.9 million in 2002 to $2.8 million in 2004. In Broward County, payouts declined from $4.2 million in 2002 to $2.3 million in 2004. In Palm Beach County, they fell from $4.2 million in 2002 to $2.1 million in 2004.
Michael Haggard, a plaintiffs attorney who is a partner at Haggard Parks Haggard & Lewis in Coral Gables, said, "You're seeing more accidents but not more lawsuits because of the changes in the workers' comp law."
Field said the construction industry has little oversight when it comes to safety. "You see situations were no safety precautions are taken," he said. The federal Occupational Safety and Health Administration, which is supposed to enforce job safety rules, "has no standing with construction industry."

January 24, 2006

More on Nationwide survey of day labor hiring sites

Previously, I posted about a story reporting on a national survey about day labor hiring sites. I have just obtained the Internet location of the complete National survey: On the Corner: Day Labor in the United States.. (PDF)

Work injury risks in Oakland CA garment industry (2002)

This study is one of several independent studies by largely academic-based researchers on occupational risks of specific groups of workers. This one involves Asian garment workers in Oakland. It looks at injury risks and ergonomic solutions. An absorbing study, it is also exasperatingly flawed. Like the other studies (which I will introduce soon), this study reports that an extremely small portion of worker physical complaints result in workers comp claims. This is a very serious problem. But the authors fail to take into account the severity of the self-reported complaints. They appear not to have considered the very real possibility that many injuries also may have had non-occupational factors. They used no comparison group of workers. It is impossible to figure out if the work injury experience of these workers is materially worse than that of other garment workers. (I suspect it is.) The authors turned away multiple requests to discuss the study with me.

For the complete 26 page report go to We Spend Our Days Working In Pain

I have posted below the Executive Summary and Recommendations......

California sewing factories employ over 100,000 sewing machine operators, most of whom are Asian and Latina immigrants. Health and safety violations are common in the mostly small factories that employ these minimum wage workers. This report is based on the clinical findings and survey results from sewing machine operators seen at the Oakland-based Asian Immigrant Women Workers Clinic (AIWWC), a free clinic for garment workers sponsored by Asian Immigrant Women Advocates (AIWA) and the University of California San Francisco (UCSF). Findings include:

  • Garment workers are being injured on the job and are at substantial risk of permanent disability from their injuries. Ninety-nine percent of AIWWC patients had one or more diagnosed work-related conditions, including back, neck or shoulder sprains or strains. Ninety-four percent experienced pain severe enough to interfere with their daily activities.

  • Working conditions in garment factories are frequently substandard. Approximately 94% of patients reported one or more problems with their workstations including inadequate seating (90%), awkward bending and twisting (67%), breathing problems due to fabric dust (48%), less than adequate rest breaks (40%), and being yelled at by their bosses (36%).

  • Garment workers typically work over 40 hours per week for low pay and no benefits. Patients reported earnings of $6.32 an hour, 25% less than the poverty level for a family of four. Only 22% of patients had health insurance and only 12% reported paid sick leave.

  • The overall health status of garment workers is far worse than that of the general population. A total of 66% of the garment workers in this study reported “poor” or “fair” health. This is three to four times higher than the rate for women in California.

  • Garment workers have inadequate access to occupational health care, specialty treatment services and general preventive health care. Nearly one-third of these women had never been seen by a health care provider for their ongoing musculoskeletal problems. Only a small fraction had been treated by clinicians trained in recognizing and treating occupational health problems.

  • Garment workers are effectively prevented from using the Workers Compensation system. Ninety-seven percent of workers seen in the clinic were eligible to file for workers compensation for their injuries, but refused to do so primarily due to lack of knowledge about the system or because they feared reprisals on the job.

  • Musculoskeletal injuries experienced by garment workers are preventable. Technology is not the problem. In many cases there are simple, cost-effective ergonomic solutions that would prevent the common musculoskeletal problems these workers experience.

Continue reading "Work injury risks in Oakland CA garment industry (2002)" »

January 23, 2006

North Carolina employer tries to keep a work fatality out of the workers comp system

The Ashville NC Citizen Times (reporter: Jay Ostendorf) carried several articles about this case, which was related to me by the health worker cited below. Certain details are omitted due to the current sensitivity of the matter at this time (1/06).

In western North Carolina, a local newspaper, The Sylvia Herald, carried a funeral home notice that Raul Carbajal, 37, of Hendersonville, North Carolina died Thursday, August 12, 2004, from injuries sustained in an vehicle accident. “A memorial service was held at Immaculate Conception Catholic Church in Hendersonville. The body will be sent to Comitan, Mexico, for service and burial.”

As reported by the Ashville Citizen Times, Mendez was one of eight in a pickup truck which crossed a highway grass median and on-coming lane traffic, broke through the guardrail, and rolled over spilling out passengers and tomato boxes. Mendez died; most others were hospitalized. The other occupants and condition a few days post accident were Armando Sanchez Soto, 44, stable condition; Orlando Martin Lopez, 25, stable condition; Jose Carlos Sanchez, no age available, serious but stable condition; Diego Jimenze, 23, treated and released; Adan Trujillo, 30, stable condition; Antonio Melgar, 35, stable condition; Sander Carillo, 22, treated and released.

An outreach worker at the local public health clinic arranged for an attorney to take on the cases for resolution in the workers comp system. For doing this normally uncontroversial act, the outreach worker was castigated by Mendez’s Hispanic employer, who still today (Winter, 2006) will not let this worker onto its worksite. According to this worker, the employer was intent on pretty much isolating its workers from the state’s work safety, workers comp, and other labor standards.

January 22, 2006

The Erosion of Worker Safety (1/4/06)

I wrote this Op-Ed article for the Boston Globe, starting with:

Massachusetts’ distinguished promise of worker safety is fraying. More of our workers work unsafely. When they sustain a serious work injury they are less able to access the protections of our four-generations-old workers' compensation system.
"It has become easier for employers to cut corners on their legal obligations. If Congress succeeds in criminalizing undocumented worker status, it will become even easier."

The Brazilian Immigrant Center was very helpful in my research for this article, as well as Jon Coppelman of Lynch Ryan, a workers comp expert and former union carpenter who works with small employers to reduce injuries.

Combining vulnerable undocumented workers with employers willing to violate safety and workers comp laws makes a toxic cocktail. Enforcement of workers comp laws includes making sure that employers required to purchase workers comp insurance do so. This is strictly a state responsibility.

As a first step in enforcing the insurance provisions, state regulators and prosecutors need to take enforcement provisions seriously. This means monitoring employers, translating leads quickly into investigations, and getting employers to comply with the law without necessarily shutting the employer down and thus destroying jobs.

The Massachusetts Department of Industrial Accidents (617-727-4900) is aggressively enforcing the employer insurance provisions. It has greatly improved the results from leads. According to the Department the large majority of employers it has targeted stay in business while complying with the law.

Unions, community activists, legal aid attorneys, and medical doctors are excellent sources of information about non-complying employers. They and state regulators need to work closely.

Continue reading "The Erosion of Worker Safety (1/4/06)" »

Workers compensation rights of undocumented workers (2006)

Work Comp Central discusses a noteworthy new report issued by a task force of workers compensation lawyers:

State courts have not yet resolved tensions between federal immigration law and workers' compensation statutes, leaving in question exactly what benefits to which illegal aliens are entitled when they are injured on the job, according to an analysis by the American Association of State Compensation Insurance Funds (AASCIF).
The legal analysis, written by lawyers for the Ohio Bureau of Workers' Compensation and the New York State Insurance Fund, outlines key state court decisions and how they interact with the federal Immigration Reform and Control Act of 1986 (IRCA).

In a future post, I will be offering commentary on this analysis. AASCIF is the American Association of State Compensation Insurance Funds. Its members are workers compensation insurers, which at some time in the past were created in part with state government support to make sure that employers will have access to insurance. A few of the largest, in CA, NY, OH and WA, are state agencies staffed by civil servants.

The full report and a complete list of members with contact information can be found at AASCIF.