Yesterday 5/26 the U.S. Supreme Court upheld Arizona’s 2010 immigration law, SB 1070, in particular the provision under which businesses are penalized for hiring illegal workers. (The Court did not rule on the most publicized part of the law, which is to authorize police officers to inquire about immigration status.) This ruling will likely accelerate state initiatives to create their own immigration law enforcement programs.
The case is Chamber of Commerce of America vs. Whiting et al. Here is the key passage from the decision:
The [Federal] Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio- late that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2).
IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsi- bility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees.
Against this stautory background, everal States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify.
The Chamber of Commerce of the United States and various business and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administering the Arizona law, arguing that the state law’s license suspension and revocation provisions were both expressly and impliedly pre- empted by federal immigration law, and that the mandatory use of E- Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. The Ninth Circuit affirmed.
Held: The judgment is affirmed.
Justice Breyer’s minority opinion says, “Arizona calls its state statute a “licensing law,” and the statute uses the word “licensing.” But the statute strays beyond the bounds of the federal licensing exception, for it defines “license” to include articles of incorporation and partnership certificates, indeed virtually every state-law authorization for any firm, corporation, or partnership to do business in the State. (excepting professional licenses, and water and environ- mental permits). Congress did not intend its “licensing” language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s pre- emption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful work- ers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.”
According to the New York Times, “The decision on Thursday turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who” recruit or hire “unauthorized aliens.”
The question was whether Arizona was entitled to supplement the penalties in the 1986 federal law with much tougher ones of its own. The state argued that the phrase in parentheses — “other than through licensing and similar laws” — allowed it to suspend or revoke the business licenses of repeat offenders. Critics called that provision of the state law a “business death penalty.”

Continue reading Supreme Court: key provision in Arizona immigration law is OK

In yet another informative article on WorkCompCentral (subscription required), the legal status of illegal immigrants in the 50 states’ workers compensation systems is reviewed, with a case study from the District of Columbia. The article summaries the current situation, nationwide:
“Currently, Wyoming is the only state that expressly denies workers’ compensation benefits for injured workers. Lawmakers in Ohio talked earlier this year about passing legislation that would also prohibit illegals from participating in the workers’ compensation system. Bills have been introduced in Arizona in each of the past two legislative sessions, but failed to win approval. Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin are silent on the issues, while the remaining states expressly include illegal aliens in their work comp statutes. Courts in Oregon, California and Nebraska have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.”
Court: Illegal Alien Eligible for Total Temporary Disability Benefits
By Greg Jones, reporter
Palemon Casarrubia Gonzalez can’t legally work in the U.S., but an appellate court in Washington, D.C., ruled last week that he is entitled to temporary total disability benefits from the period he was injured until he was medically cleared to return to work.
The decision marks the first time a District of Columbia court has expressly stated that undocumented workers are entitled to participate in the workers’ compensation system, according to attorney Manuel Rivera, the Virginia attorney who represented Gonzalez. The decision addressed only Gonzalez’s entitlement to temporary disability benefits.
“It’s a very important decision for D.C. because this is the first time the D.C. court expressed itself about the rights of undocumented aliens to workers’ compensation,” Rivera said. “It’s a great decision and I think it is going to be cited again.”
The case is Asylum Co. et al. v. District of Columbia Department of Employment Services et al., 08-AA-1158, published Dec. 23.
Gonzalez was working as a bus boy for a bar owned by Asylum Co. on June 30, 2005, when a customer threw a bottle that struck him in the eye. Gonzalez suffered a dislocated lens in his right eye that required immediate medical treatment and later needed surgery. He initially suffered from 100% total loss of vision in his right eye, and from blurry vision and increased pressure in his eye while he was recovering.
Gonzalez attempted to return to work in a part-time position at Asylum July 17, 2005. He was told the company learned he was an undocumented alien and could not rehire him.
During the trial, the company said Gonzalez applied for the position under the name of Armando Casarrubias. The company did not learn of his immigration status until it received hospital bills for Gonzalez rather than Casarrubias.
Gonzalez filed for workers’ compensation benefits Aug. 15, 2005. Asylum neither started paying benefits nor filed a notice of controversion.

Continue reading workers comp benefits for injured illegal workers: where are we?

The Boston Globe has reported on the shoddy practices of a Massachusetts pizza restaurant chain, focusing on a case involving a Brazilian worker (eastern Massachusetts has a very high number of Brazilian immigrants. Here is the story:
Upper Crust said to face probe by AG
By Jenn Abelson Globe Staff / December 10, 2010
The Upper Crust pizza chain is coming under scrutiny by the Massachusetts attorney general’s office for potential violations of the state’s minimum-wage and other workplace laws, according to an official briefed on the matter.
This inquiry comes days after the Globe reported allegations from former Upper Crust employees that the Boston pizzeria exploited Brazilian immigrant workers as it rapidly expanded over the past decade. Former employees have accused Upper Crust and owner Jordan Tobins of taking back thousands of dollars in overtime payments that were ordered by the Department of Labor and failing to pay minimum wage.
“We have nothing to hide. We welcome any investigation,’’ said George Regan, a spokesman for Upper Crust.
“The violations in this case are particularly egregious, and we are pleased to see another agency looking into this as well,’’ said Shannon Liss-Riordan, one of the lawyers representing former workers who filed a lawsuit in July against Upper Crust.

Continue reading Web of Mass. employer abuses of immigrant worker rights

Work injuries sustained by an illegal worker often lead into a legal labyrinth ending up, usually, with the worker being granted some or all the benefits allowed by a state’s workers compensation system. This Florida case fits the mold.
As reported by WorkCompCentral (subscription required) Angel Miranda was injured in July 2008. His employer paid him under the table for his disability.
When the employer stopped its payments, he filed a workers compensation claim. Only problem: he had no formal record of having earned a wage, presumably he had been paid in cash, and to award disability benefits a worker has to show evidence of what he was paid. Miranda tried to remedy the situation by filing in April 2009 a tax return for 2008. A workers compensation judge awarded Miranda disability benefits; the decision was upheld of appeal.
Whether he was later deported or not the news article did not say.
The article:
Illegal Alien’s Tax Return Entitled Him to Benefits:
An illegal alien’s filing of a tax return with the Internal Revenue Service entitled him to workers’ compensation benefits, Florida’s 1st District Court of Appeal ruled.
Case: JBD Brother’s and Masonry Inc., et al. v. Miranda, No. 1D09-3402, 1/25/10, published.
Facts: Angel Miranda was an illegal alien from Mexico who has lived in the United States since 2000. In 2008, he began working as a forklift driver and laborer for JBD Brother’s and Masonry. Miranda was injured in July 2008, when he fell from a scaffold at the employer’s job site in Miami.
The employer failed to immediately report the accident to its workers’ compensation carrier, and instead, agreed to make “under the table” payments for Miranda’s medical care and lost time until he recuperated. When the employer halted the payments in September 2008, Miranda retained an attorney and filed a petition for benefits.
The employer responded by reporting the accident to its carrier, which accepted the accident and injury as compensable. However, the carrier denied indemnity benefits because there was no record of Miranda ever having reported his wages to the Internal Revenue Service.
In April 2009, Miranda and his attorney filed forms reporting his 2008 income to the IRS, and seeking an individual taxpayer identification number.
Procedural History: The parties stipulated that Miranda’s reported income equated to an average weekly wage of $480. However, the employer argued that because Miranda failed to file the correct forms with complete information to the IRS, he failed to properly report his income and therefore failed to establish his wages for purposes of calculating an AWW.
The judge of compensation claims rejected this argument, and awarded temporary total disability benefits.
The appellate judges concluded that Miranda was entitled to workers’ compensation benefits despite the allegation that his tax return may have had some technical flaws. The court based this upon another Jan. 25, 2010, decision, which is named Rene Stone Work Corp. v. Gonzalez.
In that decision, the court concluded that an employee simply needs to report his or her income to the IRS to become entitled to benefits, and rejected arguments that the tax return needs to be technically precise.
Source: WorkCompCentral

New from the Global Workers Justice Alliance (press release):
The Global Workers Defender Network is comprised of human rights organizations and individual advocates, in the migrant sending countries, who facilitate employment law cases for migrant workers in partnership with advocates in the countries of employment. The Defenders also identify cases of migrants who have suffered labor exploitation and educate migrants on their labor rights.
The Defender Network was launched in April 2008 in Chiapas, Mexico when the first group convened for an intensive training. Through the training program, the Defenders learned about U.S. employment-related law, human trafficking, U.S. civil procedure, and international law. For more information and photos from the training, click here.
Currently, the Global Workers Defender Network is operational in Mexico and Guatemala. Over time, the Network will expand within Mexico and Guatemala as well as to additional countries.

The Wall Street Journal reports that Homeland Security is reining in a Bush Administration program to authorize state and local law enforcement to make immigration violation arrests. It writes, “Opponents said the program, known as 287g, was intended to identify criminal aliens but instead has led to racial profiling; it allowed local police to identify and arrest illegal immigrants for such minor infractions as a broken tail light. In the past two years, more than 120,000 suspected illegal immigrants were identified through the program, and most ended up in deportation proceedings. By comparison, ICE removed 356,739 illegal immigrants from the U.S. during the fiscal year ended Sept. 30, 2008 — a 23.5% increase over the 2007 total.”
The article in full:
New Curbs Set on Arrests of Illegal Immigrants
By Miriam Jordan
The Wall Street Journal, July 11, 2009
The Department of Homeland Security said Friday it was revising a program that authorized local police to enforce federal immigration law — a controversial aspect of U.S. border policy.
Opponents said the program, known as 287g, was intended to identify criminal aliens but instead has led to racial profiling; it allowed local police to identify and arrest illegal immigrants for such minor infractions as a broken tail light. Program supporters said it has been an effective tool for combating illegal immigration.
The new guidelines sharply reduce the ability of local law enforcement to arrest and screen suspected illegal immigrants. They are intended to prevent sheriff and police departments from arresting people ‘for minor offenses as a guise to initiate removal proceedings,’ according to Homeland Security. The program will instead focus on more serious criminals.
‘In a world of limited resources, our view is that we need to focus first and foremost on people committing crimes in our community who should not be here,’ said John Morton, Assistant Secretary of U.S. Immigration and Customs Enforcement. Mr. Morton said his agency would sign new contracts with local law enforcement that would bolster federal oversight.
In the past two years, more than 120,000 suspected illegal immigrants were identified through the program, and most ended up in deportation proceedings. By comparison, ICE removed 356,739 illegal immigrants from the U.S. during the fiscal year ended Sept. 30, 2008 — a 23.5% increase over the 2007 total.
The most active local enforcer has been Joe Arpaio, the sheriff of Arizona’s Maricopa County. He said Friday he would continue pursuing illegal immigrants, arguing that state laws allow neighborhood crime sweeps and worksite raids.
‘If I’m told not to enforce immigration law except if the alien is a violent criminal, my answer to that is we are still going to do the same thing, 287g or not,’ said Mr. Arpaio. His deputies have identified in jail or picked up on the streets more than 30,000 illegal immigrants in the Phoenix area. ‘We have been very successful,’ said the five-term sheriff.
The Department of Justice is investigating whether Mr. Arpaio’s deputies have used skin color as a pretense to stop Latinos suspected of being illegal immigrants.
Mr. Obama’s policy change is expected to bolster his standing with Latinos and some Democratic legislators. The administration is seeking to set the stage for a sweeping overhaul of immigration legislation that could put millions of illegal workers on the path to U.S. citizenship.
President George W. Bush pursued a similar goal. After the efforts failed in Congress, his administration stepped up enforcement with raids and the expansion of such programs as 287g.
The provision was created by Congress in 1996 and designed to train local police to help federal immigration authorities locate criminal aliens. It took six years for the first state, Florida, to sign on to the program.
The Bush administration promoted the program among sheriffs and police chiefs, turning it into a symbol of his crackdown on illegal immigration.
Since January 2006, more than 1,000 state and local law-enforcement officials have been certified. Many jurisdictions used those officers in jails, where they could sort through many inmates in a single shift.
Southern states account for more than 40 of the 66 existing participants. There are 42 applications pending, most of them in the South. Both Virginia and North Carolina, where the Latino immigrant population has grown, each have nine 287g agreements, more than other states.
‘I think the program is working great,’ said Wake County, N.C., Sheriff Donnie Harrison. ‘If the highway patrol brings someone to our jail, and they say they are foreign born, then they are flagged for 287g. They have committed a violation of some sort to be brought to our jail…from broken tail lights to murder and rape.’
Raleigh, N.C., resident Maria Hernandez was booked into a Wake County jail after failing to show up for her 6-year-old son’s truancy hearing, according to her account and that of her attorney, Marty Rosenbluth.
Ms. Hernandez, a cleaning lady who came to the U.S. illegally nine years ago, is now in deportation court. ‘I don’t understand why they come after people like me,’ she said.
Homeland Security Secretary Janet Napolitano ordered a comprehensive review of 287g shortly after taking her post earlier this year. Members of Congress and the Government Accountability Office had raised concerns the program was being used ‘to process individuals for minor crimes, such as speeding, contrary to the objective of the program.’
The shift on 287g follows other recent modifications to immigration policy by the Obama administration, reflecting an effort to shift the burden of immigration enforcement to employers, while making it difficult for illegal immigrants to get hired.
In the past two weeks, Ms. Napolitano said federal contractors would be required to check the identity of new hires against a federal database. DHS also will audit hundreds of companies to verify whether their employees are eligible to work.