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July 29, 2007

Refugio: OSHA - Hispanic worker joint safety project in NJ

According to this report, the Occupational Safety and Health Administration, New Jersey Department of Labor and Workforce Development and El Refugio of Newton, N.J., signed an alliance to develop workplace safety and health training programs to promote construction safety among Hispanic workers and employers.

El Refugio is a nonprofit outreach center for Hispanic families.

Under the alliance, OSHA will work with El Refugio to develop workplace safety and health training programs to educate the organization's clients about fall, amputation, electrical, struck-by and crushed-in hazards and emergency response issues.

OSHA also will deliver its 10-hour construction and general industry courses to Hispanic employers and employees in both English and Spanish.

The agreement will remain in effect for two years.

"This alliance will expand our ability to protect employees who are often at risk because of a language barrier," OSHA Parsippany, N.J., area office director Phil Peist said.

"OSHA looks forward to working with El Refugio and the state of New Jersey to accomplish this critical goal," Peist added.

Safety and health alliances are part of the Department of Labor's efforts to improve the health and safety of employees through cooperative partnerships with trade associations, labor organizations, employers and government agencies.

OSHA currently has more than 450 alliances throughout the nation with organizations committed to promoting safety and health in the workplace.

Real ID program implementation plan issued by DHS

Real ID Implementation Plan

The Department of Homeland Security has issued an implementation plan for this program to make drivers licenses uniform across the country. Go here for an html version of the plan. Go here for a report to the National Governors Association about the potential impact of the REAL ID program.

The bill that will not go away

Senator Arlen Specter of PA says he is fashioning a new immigration reform bill, one that will not have the Z visa provision of the failed measure, which would give blanket protection to 12 million illegal immigrants. This adjustment may mollify the anti-amnesty crowd, but will rile businesses who want to hire these 7 million - plus workers without incurring legal liability. I'm skeptical.

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

At least eight states have workers' compensation statutes that expressly address the eligibility of illegal aliens. Six of those states (California, Florida, Nevada, New York, Texas, and Utah) expressly include illegal aliens in their workers' compensation coverage. Two states (Idaho and Wyoming) expressly exclude illegal aliens from workers' compensation coverage. In these states, the courts uniformly hold that illegal workers are covered where they are within the express terms of the statute and not covered where they are not.

A second set of statutes expressly address aliens, but without clear reference to their legal status. In five states (Illinois, Michigan, Minnesota, North Dakota, and Ohio), workers' compensation laws expressly include aliens but make no express reference to their legal or illegal status. The courts in those states have held that these statutes apply to illegal aliens. In several other states (Alabama, Arizona, Colorado, Montana, North Carolina, South Carolina, and Virginia), the legislature extends coverage to "aliens and minors" who are "legally authorized" to work. Even these statutes have been interpreted to apply to both legal and illegal aliens, on the rationale that the "legally authorized" modifier applies only to minors.

The third and largest set of statutes do not address aliens at all. Nineteen states (Alaska, Arkansas, Connecticut, Delaware, Hawaii, Iowa, Kansas, Louisiana, Maine, Massachusetts, Nebraska, New Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, Rhode Island, Washington, and Vermont) have very broad definitions of covered workers, largely paralleling the federal definition: "an individual employed by an employer." Five states (Georgia, Indiana, Kentucky South Dakota, and Wisconsin) use similarly broad language, while expressly including minors. Six other states (Maryland, Mississippi, Missouri, Oregon, Tennessee, and West Virginia) also include minors within their broad definition of covered workers, while specifying that minors are covered regardless of their illegal status. A few courts have found that these sorts of statutes encompass both legal and illegal aliens.

Exclusion of Illegal Aliens on Alternative Statutory Grounds

Even where illegal aliens fall within a broad definition of covered workers, they are sometimes excluded on alternative grounds, such as the absence of an enforceable contract, fraud, or lack of causation.

The seminal case is Granados v. Windson Development Corp. (Virginia, 1999, 509 S.E.2d 290). Granados held that because illegal aliens "cannot be employed lawfully in the United States," the employment contract was void and Granados was therefore not an "employee" for purposes of the Virginia workers' compensation statute. However, the Virginia Legislature subsequently overruled this decision. Several other states have recently declined to follow the Granados holding.

In Doe v. Kansas Department of Human Resources, the Kansas Supreme Court acknowledged that the illegal alien claimant was "legally entitled to ... benefits" under the Kansas workers' compensation statute, but concluded that her benefits could be suspended on the basis of the "fraudulent and abusive" act she committed when she misrepresented her identity.

The Michigan Court of Appeals reached a similar conclusion in Sanchez v. Eagle Alloy.

The Pennsylvania Supreme Court has refused workers' compensation benefits to an undocumented worker on causation grounds. In Reinforced Earth Co. v. WCAB (Astudillo), the court held that while the claimant was entitled to the wage-replacement benefits he received, those benefits could be suspended on the grounds that the claimant's disability was not caused by his workplace injury, but rather by his illegal status. Pennsylvania courts have consistently followed this approach in subsequent cases.

Thomas R. Lee is a professor of law at Brigham Young University and Dennis V. Lloyd is chief legal counsel at the Utah Workers Compensation Fund. This column first appeared in the American Association of State Compensation Insurance Funds quarterly news.

July 7, 2007

Immigration Malpractice by Citizenship and Immigration Services

The NY Times ran an editorial condemning the inefficiency of CIS, part of Homeland Security, in processing green card applications. The State Department encouraged people to file applications in a way that inundated CIS. Read here:

The prickliness and glacial ineptitude of the immigration system is old news to millions of would-be Americans. Immigrants who play by the rules know that the rules are stringent, arbitrary, expensive and very time-consuming. But even the most seasoned citizens-in-waiting were stunned by the nasty bait-and-switch the federal bureaucracy pulled on them this month. After encouraging thousands of highly skilled workers to apply for green cards, the government snatched the opportunity away.

The tease came in a bulletin issued by the State Department in June announcing that green cards for a wide range of skilled workers would be available to those who filed by July 2. That prompted untold numbers of doctors, medical technicians and other professionals, many of whom have lived here with their families for years, to assemble little mountains of paper. They got certified records and sponsorship documents, paid for medical exams and lawyers and sent their applications in. Many canceled vacations to be in the United States when their applications arrived, as the law requires.

Then they learned that the hope was effectively a hoax. The State Department had issued the bulletin to prod Citizenship and Immigration Services, the bureaucracy that handles immigration applications, to get cracking on processing them. The agency is notorious for fainting over paperwork — 182,694 green cards have been squandered since 2000 because it did not process them in time. That bureaucratic travesty is a tragedy, since the annual supply of green cards is capped by law, and the demand chronically outstrips supply. The State Department said it put out the bulletin to ensure that every available green card would be used this time.

After working through the weekend, the citizenship agency processed tens of thousands of applications. On Monday, the State Department announced that all 140,000 employment-based green cards had been used and no applications would be accepted.

Citizenship and Immigration Services, the definition of a hangdog bureaucracy, says the law forbids it to accept the applications. The American Immigration Lawyers Association says this interpretation is rubbish. It is preparing a class-action lawsuit to compel the bureaucracy to accept the application wave that it provoked.

The good news is that immigrants’ hope is pretty much unquenchable. Think of the hundreds of people standing in the rain in ponchos at Walt Disney World on Independence Day, joining the flood of new citizens now cresting across the country. They celebrated on July Fourth, but for many of them the magic date is July 30, when a new fee schedule for immigrants takes effect, drastically jacking up the cost of the American dream.

The collapse of immigration reform in the Senate showed the world what America thinks of illegal immigrants — it wants them all to go away. But the federal government, through bureaucratic malpractice, is sending the same message to millions of legal immigrants, too.
Next Article in Opinion (1 of 14) »

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 http://www.workcompcentral.com, 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.