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August 31, 2010

Farm Workers' "Take our job" campaign

This July, the United Farm Workers launched a campaign on behalf of immigration reform by inviting Americans to take on a farm worker’s job for a week. My thanks to Becki Shafer for alerting me to this. The UFW wants immigration reform primarily in the AgJobs provision, a version of which was in the failed immigration reform bill of 2008.

A UFW press release says that it has negotiated the AgJOBS bill with the agricultural industry that would give undocumented farm workers presently here the right to earn legal status by continuing to work in agriculture. Senators Feinstein (D-CA) and Lugar (R-IN) are the principal co-authors in the Senate and Congressman Adam Putnam (R-FL) and Howard Berman (D-CA) in the House.

Go here to enroll in the program. That website says that “Job may include using hand tools such as knives, hoes, shovels, etc. Duties may include tilling the soil, transplanting, weeding, thinning, picking, cutting, sorting & packing of harvested produce. May set up & operate irrigation equip. Work is performed outside in all weather conditions (Summertime 90+ degree weather) & is physically demanding requiring workers to bend, stoop, lift & carry up to 50 lbs on a regular basis.”

August 19, 2010

A brief overview of compensation rights of illegal workers

Given the Arizona law, it is worth taking a moment to review what courts and state legislatures have said about rights to illegal workers to compensation, including workers compensation. Below is a very short article. I have posted workers compensation benefit entitlement before. This article addresses various kinds of compensation.

Note that federal law makes it a crime to hire illegal workers. It does not make it a crime for an illegal person to seek or obtain work. The Arizona's criminal provision for seeking or obtaining work was struck down by the federal judge.

The article:

According to the 2000 U.S. Census, there are 31 million foreign-born people living in the U.S. — 11.1 percent of the population, and a 57 percent increase from the 1990 census. The census further found 7.5 million undocumented individuals in the U.S., with almost 3 million undocumented aliens in California and Texas alone.

Other sources provide even higher figures. According to the Department of Homeland Security, the number of undocumented individuals in the United States is 8-12 million, while the Center for Immigration Studies puts the count at 10-11 million. Almost all sources agree that there are 700,000 to 1 million illegals entering annually, according to Richard A. Watts, an attorney in the Atlanta law firm of Swift, Currie, McGhee & Hiers.

These numbers mean that many employers and HR professionals who deal with workers’ compensation will eventually have to handle claims filed by undocumented workers, Watts told attendees at a July session of the SEAK National Workers’ Compensation and Occupational Medicine Conference.

Federal Law Makes It Illegal to Employ Undocumented Workers

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal to “hire or recruit or refer for a fee” an unauthorized alien. It is illegal under the act to knowingly employ an authorized worker or to “continue to employ” a worker you later find to be unauthorized.

If an employee’s undocumented status becomes clear once he or she has filed for workers’ compensation benefits, what then are your obligations under IRCA as well as under state workers’ compensation laws? Watts asked the conference audience.

Although, he said, federal law clearly prohibits hiring these workers, once they become injured on the job, several states explicitly allow them to recover workers’ compensation benefits. Statutes in Florida, New York, Texas and Utah permit the recovery of benefits by undocumented workers. In a number of other states, including Connecticut, Georgia, Louisiana, Nebraska, Ohio, Oklahoma, New Jersey, North Carolina and South Carolina, courts have held that compensation benefits cannot be denied solely because the injured worker is undocumented.

Arguments Made to Deny Benefits

Many state workers’ compensation acts define an employee as “anyone under contract for hire or apprenticeship.” Illegal aliens cannot legally contract. Therefore, an argument can be made, Watts said, that compensation benefits should be denied because illegals are not subject to the act in that they do not meet the definition of “employee.”

This argument has been successful in courts in Arizona, Virginia and Wyoming, Watts noted, although Virginia subsequently changed its law to explicitly include illegal aliens as employees. It has not been successful in several states, including Connecticut, Georgia, Louisiana, Ohio, Oklahoma and Texas.

Another argument, Watts said, is based on the fact that many states’ workers’ compensation statutes deny benefits if they have been fraudulently obtained. Attorneys have argued, largely unsuccessfully, that because undocumented workers have committed fraud in obtaining their jobs, they should be disqualified from obtaining benefits.

Benefits also may be denied in many states if a worker is hurt during the commission of a crime. Attorneys have argued that, because providing false documentation to get a job is a crime, undocumented workers should be denied benefits if they are injured on the job they illegally obtained. But courts have not accepted this argument either, Watts noted.

Supreme Court Case Has Little Impact

In 2002, the U.S. Supreme Court decided in Hoffman Plastics v. NLRB (535 U.S. 137) that an undocumented worker who was terminated from employment because of his union activities was not entitled to back pay, even though the employer had violated the National Labor Relations Act in discharging him. The court ruled that IRCA would be violated by awarding “back pay to an illegal alien for years of work not performed, for wages not lawfully earned, and for a job obtained in the first instance by a criminal act.”

Federal courts subsequently applied the Hoffman decision to deny claims for back pay brought by undocumented workers under the Americans with Disabilities Act and Title VII, but ruled that Hoffman was not applicable to an undocumented worker’s claim for unpaid overtime under the Fair Labor Standards Act (FLSA). In the FLSA context, the employee had already earned the wages, the court reasoned, and so could not be denied based on immigration status.

In the workers’ compensation area, an argument based on Hoffman has failed in six states (California, Florida, Georgia, Maryland, Minnesota and Pennsylvania), Watts said, with the courts reasoning that the situation is more like the one under the FLSA — the employee cannot be denied the benefits because he or she had already earned them by virtue of working for the employer prior to incurring the injury.

Immigration issues are “hot” right now, Watts concluded, and states may consider legislation restricting undocumented workers’ rights to collect workers’ compensation benefits. A bill that would have required an individual hurt on the job to prove that he or she was legally employed passed the Ohio Senate in the last legislative session but failed to pass the House, he noted.

August 17, 2010

Another analysis of the Bolton ruling on the Arizona Law

The Migration Policy Institute issued an brief analysis of Judge Bolton’s ruling against portions of the Arizona law, Senate Bill 1070. Read below:

Breakdown of the Ruling

Bolton did not enjoin all of SB 1070, which the federal government had requested. Instead, she found that four key provisions warranted a preliminary injunction for two reasons: the government's arguments that federal law preempted SB 1070 were likely to prevail at the full hearing on the merits, and the government was "likely to suffer irreparable harm" if they were not enjoined.

The four sections Bolton stopped are

* requiring local law enforcement officers to ask about the immigration status of an individual stopped by the police if an officer has a "reasonable suspicion" that the person is an unauthorized immigrant; requiring officers to verify the immigration status of anyone arrested before releasing that person from detention
* making it a state crime for immigrants to fail to carry proof of their immigration status
* making it a state crime for unauthorized immigrants to solicit or perform work
* allowing police officers to arrest without a warrant anyone suspected of having committed a public offense that renders him or her removable from the United States.

Specifically, Bolton found that the provisions related to law enforcement's mandatory inquiries into immigration status and the warrantless arrests of removable immigrants would impose a "significant burden" on legal residents, many of whom could be wrongfully arrested or detained for extended periods if they could not produce proof of their immigration status.

The judge also noted that the task of determining whether an immigrant has committed a crime rendering him or her removable is a task of "considerable complexity," and state and local law enforcement officers do not receive adequate training to be able to make such a determination.

She found that the portion of SB 1070 making it a state crime for unauthorized immigrants to solicit or perform work contradicted the federal government's carefully balanced system of penalties for unauthorized employment.

In agreeing with the federal government that federal law likely preempted four sections of SB 1070, Bolton found that implementing the four provisions would require the federal government to shift resources away from law enforcement priorities.

Finally, Bolton also recognized that allowing SB 1070 to take effect would undermine the ability of the United States to "speak with one voice" on immigration matters, with implications for a uniform national foreign policy.

Bolton declined to block the various other provisions of SB 1070, finding that they were not likely to be deemed preempted during a full hearing on the law. These provisions include

* prohibiting Arizona officials, agencies, and subdivisions from limiting the enforcement of federal immigration law
* making it a crime to hire day laborers if the practice impedes normal traffic flows
* making it illegal to transport, conceal, or harbor unauthorized immigrants
* amending the definitions of crimes of human smuggling.

Ruling in Context

Many immigration experts and constitutional scholars have argued the lawsuit against Arizona was necessary to reassert the federal government's authority to set a national immigration policy.

Since the 1800s, courts have held that regulating immigration policy is primarily a federal responsibility, though the Supreme Court has recognized that not every state law dealing with immigrants is "a regulation of immigration, and thus per se preempted."

The argument over what triggers federal preemption in the immigration context will reemerge this fall when the Supreme Court considers the legality of another controversial Arizona law, the 2007 Legal Arizona Workers Act. That law held that the state could suspend or revoke the business licenses of Arizona businesses that knowingly employed unauthorized immigrants.

Like the plaintiffs in the SB 1070 case, those challenging the Legal Arizona Workers Act have asserted that federal law preempts the Arizona law. Briefs from both sides are due to the Court by October.

Some analysts have noted that Bolton's decision may prevent other states from enacting laws similar to Arizona's, at least until after the legal challenge facing Arizona is fully resolved.

Obama administration officials have echoed this assessment, calling the decision a powerful "warning sign" to states considering similar legislation.

But while the injunction may well have dampened some enthusiasm for "copy cat" measures among state legislators, the politically charged nature of the immigration debate, combined with the midterm election season, have not extinguished all efforts to introduce such legislation.

Already, lawmakers in Utah, Virginia, and Colorado have announced they will move forward with plans to introduce tough "Arizona-style" bills, regardless of Bolton's ruling.

August 15, 2010

What Judge Bolton ruled what was unconstitutional in the Arizona law

Below is a good summary of the provisions of Arizona’s Senate Bill 1070 that Judge Susan Bolton of the United States District Court for the District of Arizona ruled unconstitutional. Her reasoning was largely but not only focused on the matter of federal preemption.


Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

* Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
* Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
* Creating crimes for intentionally or knowingly employing unauthorized aliens; and
* Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

* Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
* Creation of a crime for failure to apply for or carry immigration papers;
* Create a crime for an unauthorized alien to solicit, apply for or perform work; and
* Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his "sweeps" pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.

Discussion of the Enjoined Sections of SB1070

The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.

Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.

Compulsory Determination of Immigration Status Upon Arrest

The Court decided to enjoin this provision on the grounds that requiring police officers to make such a determination would be in contradiction to the comprehensive scheme of immigration laws enacted by Congress, increase the time needed to detain a person for offenses and inevitably sweep up legal immigrants into the fray. Additionally such determinations, especially is conducted by all states, impermissibly burden the federal database for checking immigration status.

Compulsory Determination of Immigration Status Upon Lawful Stop, Detentions or Arrests
Judge Bolton decided this issue on similar grounds to the issue above, except for one additional and important point. Specifically, the Judge pointed out that there are many aliens who are lawfully present in this country who are not required to carry immigration documentation on them at all times or do not have easy access to documentation that could prove their nationality.

Crime of Not Carrying an Alien Registration Document

This aspect of SB1070 was deftly handled by the judge under the premise that the determination of nationality is not a shared duty between the federal government and the states, but rather a federal power, superior to the states. It is established law that the states cannot conflict or add to the federal law in this area. Here, Arizona attempted to create state penalties for a violation of federal law, complementing or adding to the federal law.Under the US Constitution and basic tenants of the separation of powers, this provision could not stand.

Creating A Crime for an Unauthorized Foreign National to Knowingly Apply for or Perform Work

The court blocked a provision of SB 1070 that would create a class A misdemeanor for foreign nationals who are not authorized to work, to apply for or perform work in Arizona. Wisely, the court in this instance recognized that Congress had preempted state action in regard to establishing regulations for alien work authorization. Specifically, the court listed the numerous provisions of federal immigration law that are targeted specifically at the punishments for an authorized work. Additionally, the court cited the legislative history of the IRCA's drafting in which Congress considered creating penalties for the employees working without authorization, then rejected such action.

Allowing Police to Arrest anyone if the Officer has probable cause to believe that a person has committed an offense which makes him or her removable

The court stated that on its face, this provision really added nothing new to the enforcement of Arizona criminal law. However, at the hearing, it became evident that the provision was meant to be able to allow for the warrantless arrest of a foreign national if he or she had committed a crime in a state other than Arizona, which the officer had probable cause to believe would make him or her removable from the United States. Anyone who has ever come into contact with the system for determining removability in the United States knows that such a determination of removability is a complex, legal matter to be adjudicated only by the immigration courts. Knowing this, and considering that legally present aliens would be swept up into the enforcement of this bill, this provision was enjoined accordingly.

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.