Thread: Undocumented workers have rights,

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Rocky Mountain News

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Equal treatment
Undocumented workers have rights, protection under U.S. law

By Todd Frederickson
August 12, 2006

While media reports of Gov. Bill Owens signing a restrictive immigration-related bill have been prominent recently, it is a rarely reported fact that undocumented workers are treated rather favorably when it comes to employment rights in the United States.

Once an immigrant reaches the U.S. and begins working, he or she is broadly treated just like an American citizen under labor and employment law. The case law indicates that such favorable treatment is designed to lessen the risk that employers will hire undocumented workers under the premise that they can't be sued if they treat such workers unlawfully.

The cases are interesting and likely will surprise many, especially those who believe that undocumented workers are always on shaky legal ground. Here are some recent, prominent cases from around the nation.

• Labor law. In a federal case in 1999, a manufacturer refused to bargain with a newly certified unionized work force under the premise that many of the voters in the union election were undocumented. The court found not only that the manufacturer's argument was faulty but also that undocumented workers were covered "employees" under the National Labor Relations Act.

• Workers compensation. In a case in Maryland in 2005, an undocumented worker who failed to provide a Social Security number on his job application was injured on the job. The court held that the employee was "a covered employee" under the Maryland Workers Compensation Act and that the federal Immigration Reform and Control Act did not bar the award of workers compensation benefits to an undocumented worker.

In a similar California case in 2005, a court held that just because an employee gained employment through the presentation of fraudulent documents didnot mean he or she was unable to claim workers comp benefits. There has to be some kind of causal link between the fraud and the compensation payments.

• Fair Labor Standards Act. Undocumented janitorial workers in New Jersey brought an action against their employers under a variety of statutes and common law, including for overtime pay under the FLSA. The court ruled that the claimants' undocumented status did not bar them from bringing a claim under the act if sufficient facts were presented suggesting an employment relationship existed.

• Occupational health and safety/lost wages. In New York state, several undocumented workers were injured at work. They brought suit against their employer, alleging negligence and violation of New York's workplace safety laws. The suit sought damages for loss of wages. The court allowed the workers to recover lost wages, despite being undocumented.

• Tort. An undocumented worker employed by a subcontractor in New Hampshire was injured when a crane fell on top of him. He sued his employer, the general contractor and the owner of the crane.

The New Hampshire court held that the worker was allowed to sue for damages under New Hampshire law. It determined that if the person employing such an undocumented worker knew or should have known about the person's status, he or she cannot use such status as a defense against such a claim for lost earnings based on American pay rates and structures.

However, if the employer did not know that the worker was illegal or had reasonable reasons not to know, the employer would be liable only for wage levels in the worker's native country.

• Back pay. In Michigan, undocumented farm workers sought damages under the Fair Labor Standards Act and Seasonal Agriculture Worker Protection Act. They wished to recover pay for work already performed. The employer tried to gain access to the worker's documents (or lack thereof), but the court issued a protective order barring such discovery. The court held that immigration status is irrelevant for the purposes of recovering pay for work already performed.

These and other relevant cases will add fuel to the fire for those who want to restrict immigration further and enforce existing immigration law more aggressively. For if immigrants can receive free health care and benefits (in some states), plus be treated like any other employee under federal and state labor and employment law, surely it's worth the risk of being undocumented rather than going through the proper but time-consuming immigration channels.

On the other hand, unscrupulous employers who seek to take advantage of a worker's legal status should know that the law does not shield them from liability, at least when it comes to labor and employment law issues.

Todd Fredrickson is a management side labor attorney at Otten Johnson Robinson Neff + Ragonetti. He is also the former president of the Colorado Hispanic Bar Association. He can be reached at 303-825-8400 or at todd@ottenjohnson.com.

Copyright 2006, Rocky Mountain News. All Rights Reserved.

This is freaking outrageous! Illegals are entitled to workers comp even though they used forged (or no) documents to gain employment?

These and other relevant cases will add fuel to the fire for those who want to restrict immigration further and enforce existing immigration law more aggressively. For if immigrants can receive free health care and benefits (in some states), plus be treated like any other employee under federal and state labor and employment law, surely it's worth the risk of being undocumented rather than going through the proper but time-consuming immigration channels.

Ya think?