Illegal Immigrants: Working In the Twilight Zone

December 20th, 2005 by

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.