Annals of Workers Comp: Undocumented Workers and the Specter of Retaliation

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Jose, 37, worked construction for 7 years. In late March he fell off a ladder at work and broke his femur. Despite his status as an undocumented worker, he was eligible for workers comp, so he filed a claim. Unfortunately - and illegally - his employer lacked workers comp coverage on the day of the injury.

Fleeing the anarchy of gang violence in Honduras, Jose Flores and his wife came to the United States seeking work and the opportunity to raise their children. Jose, 37, worked construction for 7 years. In late March he fell off a ladder at work and broke his femur. Despite his status as an undocumented worker, he was eligible for workers comp, so he filed a claim. Unfortunately – and illegally – his employer lacked workers comp coverage on the day of the injury. The employer invited Jose to a meeting to discuss his financial and medical needs.

One block away from the site of meeting, Jose was arrested by Immigration and Customs Enforcement (ICE). While the employer denies setting up Jose for the arrest, it’s clear that if he were deported, their workers comp liability would conveniently disappear.

Not so fast. After two weeks in detention, Flores was released. He may still face deportation, but apparently his comp claim – at least temporarily – may trump (excuse the expression) his deportation. In Massachusetts, as in many states, employers cannot retaliate against workers who file a comp claim. If Flores’s employer alerted ICE to his status and whereabouts, this would likely be considered retaliation.

Hard Times

Undocumented workers are all around us, working hard and keeping a low profile. Now that active deportation has become a political and policy issue, the already low profile of these workers has been driven even lower, to the point where they may be reluctant to report wage abuses and injuries. A dark shadow has been cast over millions of productive workers.

There is substantial unresolved tension between the federal government’s determination to deport the undocumented and the commitment of state governments to protect the rights of all workers. Where we once viewed the federal government as a key enforcer for worker rights, it now appears that such enforcement is largely the responsibility of the states.

Jon Coppelman

Senior Workers Compensation Consultant

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