Category: Legal Topics

Line up of endorsers of McCain guest worker bill

McCain’s bill calls for gradual conversion of undocumented workers to a legal status. It is free of the Rube Goldberg complexity and get-tough approach of proposals of Arizona Sen. Jon Kyl and Texas Sen. John Cornyn.
According to the Phoenix Business Journal

The U.S. Chamber of Commerce is teaming with top labor unions, other business interests and the U.S. Conference of Catholic Bishops in support of a guest worker program and legal way for undocumented workers already in the U.S. to stay in the country. Arizona Congressmen Jeff Flake and Jim Kolbe, as well as the Arizona Chamber of Commerce & Industry, behind the bill

Also behind the bill are U.S. Sen. Edward Kennedy (D-Mass.) are the Service Employees International Union, the second largest union, the Laborers International Union, the American, bishops group and the American Health Care Association. The Arizona state chamber also backs that guest worker effort. The ALF-CIO has taken a position in opposition to guest worker legislation.
The Republican National Committee (RNC) officially endorsed a guest worker program.

Other heavyweight business interests backing guest worker include the Travel Industry Association of America, Ford Motor Co., Eastman Kodak, DaimlerChrysler and the California Chamber of Commerce.

Go here to get a copy of the bill, Secure America and Orderly Immigration Act – S. 1033
The New York Times today carried a profile of Eliseo Medina, vice president of the Service Employees International Union, the nation’s second-largest union, and an advocate of Bush’s guest worker program proposal.

Thai worker case in WA reveals turmoil in use of foreign workers

A case involving a employer in Washington State who hired Thai workers on a temporary visa program puts into sharp relief today’s turmoil in using foreign workers under federally run special visa programs. The employer is being investigated by federal and state officials. And local American workers are suing the employer.
According to Rural Migration News, the state of Washington reached a $230,000 settlement with Los Angeles-based Global Horizons September 22, 2005 over the treatment of 170 H-2A visa Thai workers who picked apples in the state in 2004. Global agreed to reimburse their travel costs and improperly deducted wages.
The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature, and for which the employer attests there are not sufficient numbers of American workers.
Per the report,

Thai H-2A workers say that they had to pay $2,000 each in Thailand to get the H-2A contracts, putting up their homes and land as collateral for the cost of getting work visas. According to the Thai workers, only persons with land and other assets that they could pledge to Global were allowed to get H-2A contracts. Once in the US, 24 of the Thai workers abandoned their contracts.

Local workers are suing Global in federal court, alleging that they were not hired when they applied for the jobs that Global filled with Thais.

Washington’s Department of Labor and Industries and the Employment Security Department sent a letter to Global Horizons on December 20, 2005,saying that it was in violation of state laws requiring timely payment of unemployment taxes. Under the September 2005 settlement, Global was to retain an independent third party to investigate and provide reports on the company’s treatment of workers, which it had not done.

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.

New York court in Balbuena case: worker gets full lost wages

New York’s highest court, the Court of Appeals, ruled that an undocumented worker can receive back pay at prevailing wages as part of a tort suit against employer due to work injury. The Balbuena vs. IDR Realty case stems from a work accident in 2000 resulting in multiple skull fractures. A lower court ruled in 2005 that Balbuena was entitled to lost wages but only at the amount he would have received in Mexico. This was a tort case, not a workers compensation case, but it has implications for workers compensation. The courts in New York State have yet to rule definitively on workers comp benefits to undocumented workers.
This information was derived from the Sun, in an article written by Daniala Gerson 2/22/06
According to the Sun,

Noting that “the power to regulate immigration rests exclusively with the federal government,” Judge Graffeo concluded that state Labor Law “applies to all workers in qualifying employment situations – regardless of immigration status – and nothing in the relevant statutes or our decisions negates the universal applicability of this principle.” Moreover, she wrote, by not providing compensation to illegal immigrants, the state would encourage their employment, deterring federal objectives.

A copy of the decision is available. The court folded in a similar case involving a Polish immigrant, Stanislaw Majlinger

WA Employer settles private RICO suit over use of illegal immigrants

According to WorkForce Management, in December 2005 the executives of a fruit grower in Washington State settled for $1.3 million a suit “by a group of legal workers accusing the grower of depressing wages, which is illegal under RICO laws, by hiring illegal immigrants.” The case was initially filed in 2000, dismissed, and then appealed. The settlement covers the company’s operations between 1999 and 2004.
This is first time that a privately filed RICO suit about the use of illegal immigrants has come to a positive ending for the plaintiffs, who are American workers. In 2005, Wal-Mart last year paid $11 million to settle a federal investigation into its use of undocumented workers as janitors. Also in 2005, Washington State negotiated a settlement relating to the importation of Thai workers.
Johnson & Bell, headquartered in Chicago, handled the plaintiff’s case. The firm is involved in similar litigation against Tyson Foods, the poultry processing firm, and Mohawk Industries, the carpet manufacturer. The U.S. Supreme Court will hear the Mohawk case in April.
Zirkle Fruit used a recruitment firm, Selective Employment Agency, to manage the hiring. According to Workforce Management, all the companies being sued under RICO claim they were unaware that they were employing illegal immigrants because external labor recruiters were the ones responsible for the hiring.
RICO is the Racketeer Influenced and Corrupt Organizations Act.

Proposals to tighten worker documentation enforcement

The following description of ICE worksite enforcement of worker documentation, and proposals to tighten identity standards, is excerpted from an article by Stanley Mailman and Stephen Yale-Loehr. The article appeared in the August 22, 2005 issue of the New York Law Journal. The article is posted on the website of the law firm of Miller Mayer, which has other informational resources on immigration.

A common criticism of the President’s proposal, and indeed any program that smacks of an amnesty, is that it will simply invite further violations of our border. To try to prevent future undocumented immigration, both Senate bills would tighten the documentary rules on work eligibility.

Everyone agrees that the current I-9 system for verifying workers’ identity and work eligibility is broken. Counterfeit documents are easily available. Moreover, worksite enforcement has been a low priority for many years. According to a recent report by the Government Accountability Office (GAO), in fiscal year 1999 the former Immigration and Naturalization Service devoted only about nine percent of its total investigative efforts to worksite enforcement. [See footnote 1.]

By fiscal year 2003 that number dropped to about four percent. Id. The number of notices of intent to fine issued to employers for knowingly hiring unauthorized workers or improperly completing I-9 forms, never a high number, decreased from 417 in fiscal year 1999 to just three in fiscal year 2004. [See footnote 2.]

Continue reading Proposals to tighten worker documentation enforcement

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”.

Immigration officials to continue to impersonate OSHA safety trainers

In July 2005 federal immigration officials impersonated OSHA safety trainers in a sting to lure and arrest illegal aliens working for subcontractors at an airforce base in North Carolina. See below for the first paragraphs of a New York Times article on that event.
The blog Confined Space now reports that Immigration and Customs Enforcement (ICE) officials reportedly plan to continue this tactic, according to Inside OSHA (paid subscription):

Immigration officials told immigration and labor groups during a closed-door meeting Jan. 30 that the department will continue to have its agents pose as officials from other agencies, including OSHA, to nab illegal immigrants at work sites, despite earlier signals the policy would be dropped. The meeting was set up to discuss last year’s controversial sting operation where ICE officials posed as OSHA employees, which had prompted an outcry from labor groups and concerns from OSHA.

OSHA was not present at the meeting.

ICE officials told attendees of the meeting that the department’s first priority is national security and public safety and they would not change their controversial sting policy, according to sources involved in the discussions. In a letter sent to [the National Immigrant Law Center] NILC last year, ICE officials said they would no longer continue the practice, however, they now say they view everything from a threat-based level and would continue to increase their work site enforcement of food production companies and industries related to national security, the sources say.

Continue reading Immigration officials to continue to impersonate OSHA safety trainers

National Employment Law Project on wage abuses

The National Employment Law Project (NELP) describes itself as a non profit law and policy organization advocating on behalf of low-wage, unemployed and immigrant workers. It has recently published two papers on civil and criminal penalties for non-payment of wages. Non-payment, delays in payment, and failure to pay overtime are common complaints among immigrant workers.
The two papers are Fifty state chart of penalties for unpaid wages and Criminal penalties for failure to pay wages

TN’s program for driver’s license and Real ID

What is going on with driver’s licenses and immigrants? And what is Real ID?
The State of Tennessee is cited as a state intent on making a driver’s license or certificate available two individuals without requiring a valid social security number. According to a recent AP story published in the Washington Post (registration required), Tennessee continues to have a liberal policy towards awarding of driver’s licenses. This is at a time when state governments are beginning to struggle to comply with the Real ID requirements Congress imposed in 2005, to be effective in 2008.
The AP reported on 1/29/06 that

Tennessee has issued more than 51,000 certificates since it became the first state to offer them in July 2004, but not every certificate has gone to someone living there.

The disclosures come as Tennessee’s certificate system is being studied as a possible model for handling “non-conforming drivers” under the Real ID program recently enacted by Congress that will set a national standard for driver’s licenses by 2008.

Although the words “not valid for identification” appear in bold red letters on the face of the wallet-size certificates, banks accept them as legal ID.

“What we tried to do in Tennessee was to recognize that there are people who may be legally here but they are not completely documented,” Gov. Phil Bredesen said.

Tennessee had started licensing illegal immigrants, without a Social Security number requirement, in early 2001. More than 180,000 obtained licenses before 9-11 fears set in. The driving certificates were created in 2004 to satisfy homeland security concerns while allowing illegal immigrants to drive with certified proficiency.

Here is a brief analysis of Real ID when Congress passed it in May 2005 as part of a supplemental budget act. The following was excerpted from www.fcw.com:

According to the bill, the Homeland Security Department will be responsible for setting those standards. Under the Real ID Act, driver’s licenses and personal ID cards must include the cardholder’s legal name, date of birth, address, gender, signature, card number, digital photograph, physical security features to prevent tampering, counterfeiting or duplication and common machine readable technology with defined minimum data elements.

State motor vehicle administrators must verify the validity of at least four feeder documents, such as a Social Security card or passport, before issuing driver’s licenses or personal ID cards.

By Sept. 11, states must sign a memorandum of understanding with DHS to use the automated Systematic Alien Verification for Entitlements system to verify the legal presence of a driver’s license applicant who is not a U.S. citizen. States must capture digital images of applicants and electronically exchange driver histories with other states.

According to the bill, the new measures would take effect in three years, possibly affecting travel and access for some individuals. For example, federal officials could stop people from boarding a plane or entering a building if they have a driver’s license or personal ID card from a state that does not comply with the federal standards.

The National Immigration Law Center issued in October 2005 a comparison of application requirements for U.S> Passport and “Real ID” Driver’s License.
The National Employment Law Project contributed analysis used in the NILC’s study.
. http://www.nelp.org/

http://www.nilc.org/immspbs/DLs/app_rqrmnts_pssprt&realid_1005.pdf

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.