Illegalizing Legal Rights in Georgia and Beyond
Immigrant workers in the workers’ compensation system
By Laura Cunard Reis
The growing population of undocumented workers in the United States requires state and federal governments to enact policies and procedures to address matters associated with their employment. The issue, it seems, revolves around finding a balance between adequately protecting the rights of immigrants who are vital to the workforce and empowering the government to regulate this increasingly relevant segment of the population. Although undocumented workers have been steadily flowing into the United States in the last century, only in the last few years has their influx become a hot-button issue addressed in nearly every current events discussion.
The debate about how states should regulate undocumented Immigrants is extremely important and creates divisive discourse, even violence. After the passage of S.B. 1070, Arizona’’s Law on the topic, fights broke out and riot police were brought to the scene.1 With immigration reform sweeeping the country, events like this may become common. According to the Pew Hispanic Center, a clearinghouse for data about the American Hispanic population, undocumented workers occupied approximately 5.2 percent of America’s labor force in 2010.2 States such as Nevada, California, Arizona, New Jersey, Florida, Texas, New York, Maryland and Georgia have even greater percentages of undocumented workers.3 For example, in 2008, approximately 12.2 percent of Nevada’s workforce and 9.9 percent of California’s workforce were undocumented.4
In Georgia, the undocumented worker population is important, if not essential, to the state’s economy and the state and the federal government are in a power struggle over which entity holds the cards in making important decisions regarding immigration. While much of the media attention focuses on immigrants of Hispanic origin, these new laws affect undocumented immigrants of all ethnicities, including those from Asia, the Caribbean, Europe, Africa and Canada.5 Now, anyone with a foreign accent or unfamiliar name is subject to scrutiny. In many states, the workers’ compensation board or commission is using data collected by the courts to facilitate immigration arrests. As a result, insurance carriers are walking away from valid claims without paying a cent to the injured worker.
States Gone Wild: Federal Power Usurped by State Legislatures
The 2010 and 2011 state legislative sessions saw an onslaught of new laws that attempt to regulate populations of undocumented workers in two ways: by criminalizing the participation of undocumented immigrants in the workforce and by gibing local law enforcement agencies the authority to confirm immigration status during the enforcement of other laws. These powers are broad and certainly subject to individual interpretation, resulting in disproportionate application and enforcement. Further, the proliferation of these laws creates unique issues for attorneys representing undocumented immigrants in tort actions and workers’ compensation claims.
Every state legislature that has addressed immigration issues has done so differently. The most memorialized new state law addressing the presence of undocumented immigrants, Arizona’s S.B. 1070, specifically criminalizes the participation of undocumented immigrants in the workforce and allows police to question the legality of one’s presence in the U.S. during enforcement of other laws like routine traffic stops.6 Many state legislatures, especially those in the Southeast, have either enacted or proposed bills modeled after Arizona’s S.B. 1070.7
In addition to proposing or enacting these laws that police the presence of undocumented immigrants, several states have proposed legislation directly affecting tort and workers’ compensation claimants, effectively stripping away their rights under state workers’ compensation systems. For example, a Georgia state senator proposed S.B. 7 during the 2011 legislative session. This bill barred undocumented workers from receiving workers’ compensation benefits.8 Fortunately, the bill was tabled when both business groups and civil justice advocates, two traditionally divergent froups, pointed out that this effectively turns any work-related injury into a full-blown tort case as the bill erased the exclusive remedy protection afforded under the workers’ compensation statute. Montana’s H.B. 71 was similar in nature.9 This bill was ultimately vetoed by Montana’s governor. While these proposed bills were not passed they are concrete examples of the large amount of legislation aimed directly against undocumented workers.
Other states have developed ways to indirectly deny recovery to injured undocumented workers. In Florida, for example, employees released to a light duty work status must perform an active job search to continue to receive workers’ compensation benefits. Because undocumented workers cannot legally perform a job search, an argument can be made that they are not entitled to workers’ compensation benefits when given a light duty release.10 Georgia’s workers’ compensation statutes similarly limit an undocumented worker’s eligibility for benefits.11 Pennsylvania employers and insurers are able to reduce benefits to undocumented workers under a statute that calculates indemnity benefits by determining an employee’s “earning power.”12 Because earning power is tied to an employee’s education level and their ability to look for work, an employer or insurer may be able to reduce indemnity owed to an undocumented worker due to reduced earning capacity because the worker lacks the ability to legally find work.13 To date, California has not enacted substantial legislation aimed at limiting the rights of undocumented workers.14
Clearly, the enactment of these new laws creates complications for attorneys representing undocumented workers as these laws require the attorney to be aware of new developments and may potentially limit the total exposure in an injury claim. Included here are major issues in immigration reform and how to address them when representing undocumented workers.
Immigration Enforcement Statutes and Their Effect on Litigation
State laws like Arizona’s infamous S.B. 1070 have created problems for undocumented claimants and their attorneys as these laws allow government agents to inquire about a person’s immigration status with essentially no probable cause. This trickles down and complicates litigation, affecting written discovery, depositions and trial testimony.
Most depositions involving clients of Hispanic origin, regardless of whether they are undocumented or a legal resident, involve a line of questioning from defense attorneys inquiring about the validity of their presence in the United States, transforming a straightforward workers’ compensation deposition into an I.C.E. interrogation. Questions like: “Do you have a valid social security number?” and “Are you authorized to work in the United States?” are clearly objectionable based on Fifth Amendment grounds, but some questions asked by experienced defense attorneys to ill-prepared deponents can present real problems in a workers’ compensation claim. For example, the question, “Did you drive here today?” or “How did you enter the country?” may seem innocent but can expose an undocumented worker to an unintentional admission about their immigration status, or worse, perjure themselves on record, subjecting them to civil and criminal penalties. Further, these questions can fluster witnesses, making their testimony strained and less cogent.
A client’s interests must be protected in light of inquiries involving their immigration status by educating them about their Fifth Amendment right against self-incrimination and directing them to invoke that right during depositions, discovery and other legal proceedings as appropriate. It is the attorney’s duty to tell their client when it is and is not appropriate to invoke this right.
Another complication arising from immigration reform stems from laws allowing government agencies to enforce traditionally federal immigration laws while enforcing state and local laws. For example, it is not uncommon for an injured worker to be deported as a result of being pulled over for speeding or a minor traffic violation. Suddenly, the client is not available to seek authorized medical treatment, be deposed or otherwise prosecute his or her case and the attorney’s time and expenses are for naught. If a client gets pulled over while traveling to a medical provider and is arrested because of his immigration status, serious problems can develop in the client’s case and personal life. An arrest because of one’s immigration status is especially problematic in workers’ compensation claims because of the hard line local governments are taking, Police are no longer using a catch and release model when dealing with undocumented persons. Now they are going directly to U.S. Immigration and Customs Enforcement.
The debate about how states should regulate undocumented immigrants is extremely important and creates divisive discourse, even violence.
A knowledgeable attorney can help their client avoid potential issues that arise in light of these new enforcement statutes by informing clients of the risks and by ensuring that claimants avoid violating other laws that could lead to an arrest. The most common violations that clients should avoid are vehicular moving violations. Attorneys must instruct clients to find transportation, be it public or private. Too many cases are destroyed when a claimant is detained en route to their attorney’s office for a deposition ot to their physician for treatment. In workers’ compensation claims particularly, an attorney representing an undocumented worker must fight for insurers to provide transportation services to the physician. Failing to do so puts the case, and your client, in jeopardy.
When dealing with foreign-born clients with no transportation a pitfall may occur when insurers, without informing claimant’s counsel, send claimants to private medical evaluations for the sole purpose of sending them back to work before their injuries have healed. Language barriers can make this tactic successful where a claimant just assumes that such appointments are somewhere they are supposed to go. Here, insurers are exploiting a claimant’s inability to inquire about the purpose of an appointment from a driver or medical provider that only speaks English.
This misguidance in medial appointments can easily be prevented by staying on top of a claimant’s medical treatment and ensuring claimants keep their counsel abreast of medical and other appointments. Ideally, a claimant, especially one that is undocumented, should call their attorney whenever they are directed to a medical appointment that was not previously discussed. Pre-emptive communications between claimants and counsel about suspicious medical appointments allow counsel to fully inform claimants about the purpose of appointments and to adequately prepare them.
Lost in Translation
Language differences are a major barrier between foreign-born clients and the rest of society, particularly in a medical and legal context. Every time they need to communicate with their attorneys, opposing counsel, doctors, mediators and judges, an interpreter is required. This necessity causes all parties to invest more time and money into every case. From doubling the time of a deposition to the headaches involved in scheduling surgery or even a routine doctor’s visit, the costs are immense. Attorneys thinking of expanding their market to include representing non-English speaking workers need to seriously consider the fact that they need to expand their front-office staff and back-office staff to handle the additional burden of scheduling transportation and translation services for their clients, scheduling medical appointments as non-English speaking clients are unable to do so themselves, and hiring interpreters for mediations and other court-related meetings.
In addition to time and expenses, handling cases where your client does not speak English can be tricky. For example, in Spanish, a client with an arm injury may say that he broke his “mano,” which literally translated, means “hand” but can also mean “arm.” “Braso” is a technical Spanish word for “arm: but in some Spanish-speaking countries, people are less literal. This can create a real problem in a deposition when a client suddenly starts talking about “hand” pain when a hand injury claim has not been filed.
In addition to vocabulary variances, there are also differences in phraseology. For instance, it is quite common for a Spanish speaker to follow up a sentence with “nada mas.” For example: “I am working 30 hours a week right now, nada mas,” which translates literally to “nothing more.” This phrasing makes a claimant sound defensive and gives the perception that they are trying to hide something, when it is really just a figure of speech.
Communication issues can also occur during actual medical appointments when interpretation services are either absent or inadequate. Although insurers are typically required to set up medical appointments, they do not always set up accompanying interpretation services, especially for therapy and radiological exams. It is essential to have an interpreter even in situations where little verbal communication is required to put your client at ease and to avoid any inconsistencies in intake forms and the like. If a physician or medical professional only speaks English and an undocumented worker speaks another language, it becomes difficult, if not impossible, to accurately diagnose or properly treat a claimant, even when an interpreter is present. This inability to diagnose or treat a claimant is exacerbated when a claimant is receiving treatment for an injury that is not readily apparent, such as with pain management therapy or psychological treatment.
To correct this communication issue, claimant’s attorney must ensure effective interpreters are present at medical appointments for claimants. Further, it may be advisable to have clients fill out demographic intake questionnaires beforehand to ensure no mistakes are made. This is a simple solution, but makes a huge impact on the development of medical treatment in a case. Sever physical or psychological injuries that would otherwise go undiagnosed are diagnosed when an interpreter is effectively communicating the patient’s complaints to the medical provider.
Some attorneys may wish that their problematic clients would disappear from time to time, but undocumented clients frequently do for months at a time, unfortunately. Because they are undocumented, often they do not even have a power bill in their name and even the most seasoned private investigator is unable to track them down. When this happens, discovery deadlines may be missed and the case may get stale just because a client changed their phone number. This puts the attorney in an awkward position as they do not want to dismiss the case but cannot make decisions without their client’s consent. It is a dreadful feeling when a client calls three years after their case was dismissed and wants case status. Attorneys handling cases for undocumented workers frequently encounter this. Foreigners frequently have little understanding of the American judicial system and do not realize that attorneys cannot settle cases without their consent or take their case to trial without their presence. Similarly, when handling cases involving undocumented workers, claimant’s attorneys frequently encounter undocumented employers who do not understand the applicable laws and may even be difficult to track down themselves.
Many state legislatures, especially those in the Southeast, have either enacted or proposed bills modeled after Arizona’s S.B. 1070.
Regardless of where a workers’ compensation attorney practices, it is likely they will at some point encounter undocumented workers in need of representation. This is especially true in states with large populations of undocumented immigrants, like California and Texas. To adequately represent undocumented immigrants, it is essential for claimant’s attorneys to understand the recent developments in immigration reform and be able to translate these changes into a strategy to manage their client’s cases. As sweeping immigration reform rumbles through the United States via federal or state means, lawyers must keep their pulse on the current climate in order to protect their clients and themselves.
Laura Cunard Reis is a 2003 graduate of Emory University School of Law and a 2000 graduate of Boston College. Laura is the owner and founder of ReisLaw, LLC with offices in Atlanta and Sandy Springs, Georgia, where she focuses on litigating complex workers’ compensation claims.
1 MyFoxPheonix.com. Small Riot Breaks Out at Immigration Protest, http://www.myfoxphoenix.com/dpp/news/immigration/immigration_protest_small_riot_042310 (last accessed May 18, 2011).
2 Pew Hispanic Ctr., Unauthorized Immigrant Population: National and State Trends, 2010 1(Feb 1, 2011).
3 Id. At 15
4 Pew Hispanic Ctr., A Portrait of Unauthorized Immigrants in the United States 12(Apr. 14, 2009).
5 Immigrants of Hispanic origins account for approximately 76% of undocumented workers in the United States. Asian immigrants account for approximately 11%, Europeans and Canadians account for 4% and Africans account for approximately 3%. Supra note 2 and 11.
6 See S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010).
7 See e.g., H.B. 87, 150th Gen. Assem., Reg. Sess. (Ga. 2011); H.B. 3148, 119th Gen. Assem., Reg. Sess, (S.C. 2011)
8 S.B. 7, 150th Gen. Assem., Reg. Sess. (Ga. 2011).
9 H.B. 71, 62d Leg, Reg. Sess. (Mont. 2011).
10 Fla. Stat. Ann. 440.15(3)(b).
11 O.C.G.A. 34-9-240.
12 72 Pa. Cons. Stat. 512.
14 See Ca. Lab. Code 1171.5(a).