Every worker has a right to a safe workplace — whether they’re documented or not. And workers in many states also have the right to receive workers comp if they’re injured — whether they’re documented or not.
I wrote last week about a cruel bill making its way through the Ohio legislature that would prohibit undocumented workers from receiving workers comp payments if they’re hurt on the job. Well, ICE (Immigration and Customs Enforcement) and unscrupulous employers seem to have come up with one better: arrest injured workers when the come to workers’ comp meetings. And any action that harms any group of workers hurts all workers in this country.
That’s what happened to Honduran national Jose Flores last week when he came to a meeting with his employer about compensation for a serious injury he had suffered when he fell off a ladder and broke his femur. He has had several surgeries since then and has been unable to work.
Benitez and his wife, Rosa Flores, had fled Honduras seven years ago because of gang violence there. Three of their five children were born in the United States.
In Massachusetts, where Flores worked, undocumented workers are eligible for workers compensation payments. But when Flores went to a meeting that his employer arranged, ICE was waiting, raising the obvious question of whether his employer turned him in. Flores’ employer, Tara Construction, had no workers comp insurance the day Flores was injured.
So is this a new ICE initiative? “In an emailed statement, an ICE spokesman said he wouldn’t comment on specific work methods for security reasons. He did say, however, that ICE receives investigative leads and tips from a variety of sources, and through many means and methods.”
And Flores’ attorney raises the most important issue:
The concern for Flores’ immigration attorney, Christina Corbaci, is that this could signal another new enforcement approach by ICE under President Trump.
“Before, I wouldn’t have really had a concern telling someone, ‘Yes, you should go ahead to report something like this and assert your rights,’ ” Corbaci said. “But now we have this added fear that, could an employer in this kind of case just, you know, use someone’s immigration situation against them?”
And, of course, if Flores is deported before being awarded comp, will he still receive it?
What Do State Laws Say?
Interestingly, while many states allow undocumented workers to receive workers comp, not all do:
State laws in Texas, New York, Florida and Utah specifically grant undocumented workers who are injured on the job the right to collect workers’ comp benefits. In Connecticut, Georgia, Nebraska, Louisiana, Ohio, Oklahoma, North Carolina, New Jersey and South Carolina, the courts have ruled that an employee cannot be denied workers’ comp solely because he or she was an undocumented worker who was illegally employed.
In other states, an illegal immigrant does not qualify for workers’ comp. Arizona and Wyoming courts have ruled that the illegal immigrant cannot legally enter into an employment contract, and therefore is not an employee. The same argument has failed in Georgia, Connecticut, Louisiana, Oklahoma, Texas and Ohio.
An Injury to One is an Injury to all
Also, like the Ohio case we wrote about, although these laws and practices are intended to punish undocumented workers, all they do is create a class of intimidated workers who are even more attractive to unscrupulous employers because they can be easily exploited. And, of course, with a class of easily exploitable workers out there, all workers pay the price. Why should I hire a citizen when I can hire an undocumented worker who won’t get workers comp if he gets hurt and will most likely be too afraid to complain about working conditions?