December 20, 2005

Illegal Immigrants: Working In the Twilight Zone

The Insider has been researching the intersection of illegal immigrants and workers compensation. In most states, attempts to preclude illegal workers from securing comp benefits have failed. But now we read of a case in Nebraska (Isaac Ortiz v. Cement Products) where an illegal immigrant is cut off from vocational rehabilitation, which is normally an essential part of comp benefits for workers who cannot return to their pre-injury jobs.

Ortiz came to the United States illegally in 1990. He has a sixth grade education and does not speak, read or write English. He has worked as a laborer for a number of employers, even though he lacks proper documentation. He applied for a job with Cement Products, with a friend filling out the application (a common strategy for people lacking literacy). He provided a false social security number on his application and on his employment eligibility verification form.

In July 2001 a large bucket of cement fell on Ortiz's leg. His medical bills were paid and he collected indemnity under workers comp. With his employer unable to accommodate his restrictions, he sought re-training under vocational rehab. The court determined that Ortiz could not participate in voc rehab, because he was not legally authorized to work in the United States.

At trial, Ortiz testified that he will not be returning to Mexico, but, rather, intended to remain in this country, where he may not be lawfully employed because of his illegal status. The court determined that awarding Ortiz vocational rehabilitation services in light of his avowed intent to remain an unauthorized worker in this country would be contrary to the statutory purpose of returning Ortiz to suitable employment. He cannot work, therefore, he is not entitled to training that would allow him to work.

2nd Class Benefits for 2nd Class Workers
This case has some truly staggering implications. For example, even if Ortiz's employer had been able to accommodate his restrictions, they could not have done so. Because his illegal status was exposed during the workers comp process, he no longer could work. As an illegal immigrant, he was precluded from returning to his prior job. It appears that illegal workers collecting workers comp, once exposed, only have the option of collecting indemnity payments for an ongoing disability. They cannot return to their old jobs (modified or full duty) and they cannot retrain for new jobs. Once their claims have revealed their status, their working days are over. So they either remain on disability (with the employer footing the bill) or they slip beneath the radar screen to the underground, cash-only economy.

With all the debate on the status of illegal workers, a few things are clear:
There are millions of illegal workers in the United States.
They drive cars, but are unable to obtain legitimate licenses (and insurance) because they cannot meet federal identification requirements.
They are working some of the least desirable and most hazardous jobs.
They are not protected by conventional American labor standards. (Do you think illegal workers are able to collect the overtime to which they are entitled?)
They are not well trained and they lack proper safety equipment.
The Insider suspects that they suffer serious and fatal injuries at higher rates than other workers.
They live in constant fear of exposure and are frequently exploited.

Return-to-Work is Not an Option
While many states have (rightfully) opened the door for illegal workers to participate in the comp system, the Nebraska case highlights the dramatic contradictions that arise when the door is only half open. Most injured employees can collaborate with their doctors and their employers to achieve the mutually satisfying goal of returning to productive employment. The careers of illegal workers, by contrast, come to an abrupt halt as soon as comp claims are filed. Illegal immigrants are confronted with a very difficult choice: trying to prolong their disabilities as their only legitimate source of income, or disappearing into the underground economy. It's neither productive nor prudent to force workers into this conundrum, regardless of the immigration status. We will keep an eye on this problem, with its myriad policy implications, as it plays out from state to state in the coming months.

| 5 Comments

5 Comments

While I consider myself generally liberal, I do not find myself on the liberal side of this debate.
It is unfortunate that some people in this world are wanting for their needs. We should do what we can to help them, but I think solutions that address root causes are far more effective than solutions that address symptoms. It is unfortunate that undocumented, aka illegal, workers are in a position where they choose to expose themselves to dangerous conditions for employment that is presumably unavailable in their native countries. That said, they are working in this country illegally. We have a legal immigration process for a reason and it is not right for states' workers compensation systems to skirt the intent of the federal government (to limit and monitor immigrants to this country) by offering benefits to individuals to help them continue to break federal law.
I would be all for legislating a change in the system whereby undocumented claimants are offered vocational rehabilitation benefits contingent upon, and directed towards, re-employment in the Mexican (or the respective nation) labor market.

Thank you for calling them illegal immigrants in lieu of undocumented workers. They are second class workers because they are not legal. I do not understand how you may have the proper documents to be employed ,but no documents to obtain a drivers license. Perhaps it is due to inability to read or write. For every benefit they do not receive there are many benefits they do receive such as medical treatment. Yes we should be kind. We need some of these fine people, but we need to have a comprehensive approach and balance. Soon.

Perhaps the situation should be that employers who employ illegal workers should not have the benefit of insurance coverage - and should pay any such claims directly - this would stop employers breaking the law too.

Many issues are involved with illegal workers and their impact upon our infrastructure. Regarding the issue of once an illegal worker is hired, I think the question bcomes - Was th eemployer aware of the status? If the injured worker defrauded the employer than I have less smypathy for the worker. If the employer knowingly hires illegal workers and benefits in lower costs and exploits the workers, than I ma less sympathetic to the employer who in my opinion assumes the risk of choosing to operate in such a fashion. Hiring and screening is most important.
The entire illegal alien issue is too overwhelming to tackle here, but unethical employers should shoulder the burden.

Thoughtful comments, but one wrinkle with a contrary result: what do you do when it comes time to find the illegal immigrant worker a job as part of the voc rehab? No one can legally hire him/her, so out the window goes the job placement track.

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This page contains a single entry by Jon Coppelman published on December 20, 2005 2:52 PM.

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