REPRESENTING THE UNDOCUMENTED WORKER IN A PERSONAL INJURY CASE - Part 1. If Donald Trump becomes president

8/31/2015

 REPRESENTING THE
 UNDOCUMENTED
 WORKER IN A
 PERSONAL INJURY
 CASE

           Charles J. Schleifer, Esq.
           Haggerty, Goldberg, Schleifer & Kupersmith

Part 1. If Donald Trump
becomes president:

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       Part 2. PRESENT STRATEGIES

       Incidence of Undocumented Worker Injury
       and factual scenario that often occurs

       Statistics:

       a.     There are between 6.4 million and 8
       million undocumented workers in the U.S.
       labor Force (The Migration Policy Institute)

       b.    Type of Work. Often the most
       dangerous jobs
       1.    Construction: 920,000
       2.    Agriculture: 540,000
       3.    Manufacturing: 520,000

• c. 6 % of U.S. civilian work force and 10%
  of work injuries

• Why higher rate of injuries than general
  work force?

•   1. Poor training
•   2. Unsafe conditions
•   3. Communication/Language barrier
•   4. Cultural barriers
•   5. Employers often view
    undocumented workers as expendable
    and bypass Occupational Safety & Health
    Administration (OSHA) regulations

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d.     Myth about whether undocumented workers
pay taxes:

1.      Social Security Administration estimated that
in 2010, undocumented workers and their employers
paid $13 billion in payroll taxes. DDA paid back only $1
billion in benefits.
2.      Institute for Taxation and Economic Policy,
undocumented workers paid $10.6 billion in state and
local taxes in 2010, including $1.2 billion in personal
income taxes, $1.2 billion in property taxes and more
than $8 billion in sales and excise taxes
3.      Harvard University study, undocumented
workers’ payroll contributions to Medicare more
than $3 billion each year.

e. Reality that employers are
often aware of is that most
undocumented workers live in fear
to be identified and deported. As a
result, they often do not report
crime to police, do not speak up
when abused by employers and do
not avail themselves of the courts.

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• WHO ARE THESE PEOPLE AND WHY ARE
  THEY HERE?

• 1. Mostly from Mexico but also from
  countries of South America and islands in
  the Caribbean.
• They come here, not to free load, but for a
  better life. They generally work hard with
  little training at jobs others don’t want, are
  dependable, pay taxes, go home and take
  care of their families.

      Considerations in
      Representing them in a
      personal injury case involving
      employment

      1. Do you want to represent
      undocumented workers?—can
      you communicate with them?

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   2.   Common scenario in case of
   undocumented worker injury

   a.     Status of the worker as employee,
   sub‐contractor or someone else’s employee.
   Difficulty in getting accurate facts
   surrounding employment

   b.    Coverage issues involving workers
   compensation insurance and/or liability
   insurance with employee/sub‐contractor
   employee exclusions

   c.   How it works in reality (Salazar
   example)

3. Where status of worker in
question, Proceeding with a
claim in workers compensation:
Discussion of Advantages vs.
Disadvantages.

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Advantages

a.    Where factors of employment
would establish an employment
relationship with general
contractor/owner: (control, payment,
hours, etc)

     1.If employer has workers compensation
     coverage:

     a.     Filing for compensation precludes
     tort action (exclusive remedy Provisions of
     the Act)
     b.     If shown that an injury to employee
     occurred, regardless of previous physical
     condition, arising the course of his
     employment and related thereto:
     1.     All reasonable and necessary medical
     bills
     2.     Specific loss benefits (eye, arm, etc.)
     3.     Death benefits
     4.     Earnings lost benefit for either partial
     or total disability.

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b. Where factors of employment would establish that injured
party was actually an
      employee of a sub‐contractor, performing work for
general contractor

1.    If sub‐contractor maintains workers compensation
coverage, which he usually is contract and statute‐bound to
maintain, same benefits as above.

2.     If sub‐contractor fails to maintain workers
compensation coverage, general contractor, as statutory
employer, would be responsible for all benefits described
above so long as elements of statutory employer are met,
including injury on the premises of the general and sub‐
contract relationship with employer of the injured worker.

 c. Where neither general contractor
nor sub‐contractor maintains workers
compensation coverage, benefits
available under the Uninsured
Employer Guaranty Fund, which would
give the fund the right to seek
subrogation from the uninsured
entities.

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        d. In all above scenarios, the
greatest benefit is that the employee
will not have to demonstrate
negligence on the part of others and
employees own comparative
negligence would not be a bar to
recovery, nor limit recovery.

 • Disadvantages

 • 1.    No recovery for pain and suffering

 • 2.    Excluded from filing tort action

 • 3.    Wage loss recovery is on 2/3 of actual loss subject to
   statutory limit and employer would have a right to reduce
   compensation by returning injured worker to a modified
   job or, as soon as injured worker is released to return to
   work in any capacity, the employer would be entitled to
   potential suspension of lost wage benefits as the
   employer, unlike cases involving documented workers, is
   not required to show job availability when the employee is
   an undocumented worker.
  Reinforced Earth Company v. WCAB (Astudillo), 810 A. 2nd 99
                            (Pa. 2002)

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• WHERE EMPLOYER DENIES THAT
  WORKER IS AN EMPLOYEE OR WHERE
  EMPLOYER DOES NOT HAVE WORKERS
  COMPENSATION COVERAGE FOR
  INJURED WORKER, ABSOLUTE RIGHT TO
  PROCEED IN TORT VS. THIS ENTITY.
  Liberty v. Adventure Shops, 641 A.2nd 615
  (1994)

• Issues involved in suing an employer in tort on
  behalf of an undocumented worker

• 1.    Injured undocumented individual allowed
  access to the court for personal injury claims Hagl v.
  Jacob Stern & Sons, Inc., 396 F. Supp. 779 (E.D. Pa.
  1975)

• 2.  Will the undocumented workers status be
  known to the trier of fact? (Jury)

• a.     Where claim is only for pain and suffering and
  past loss of earnings to present, you should be able
  to file motion in limine to preclude this as unfairly
  prejudicial and not relevant, but watch out for jury
  figuring it out anyway and subtleties of questions
  (such as filing taxes under different tax ID #s that
  are phony)

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• 3.   Can Undocumented worker pursue a claim for past and future
  wage loss?

• a.     Yes. Hoffman Plastic Compounds, Inc. v. NLRB 535 U.S. 137, 122
  S.Ct. 1275, 152 L.Ed. 271 (2002). (fired employee not entitled to back‐
  pay In NLRB action) However, in The Reinforced Earth Company v.
  Workers’ Compensation Appeal Board, 570 Pa. 464, 810 A. 2d 99
  (2002) the Pennsylvania Supreme Court held that an undocumented
  worker (Illegal alien) was entitled to pursue disability benefits under
  the workers compensation act. Subsequently, in Berdejo V. Exclusive
  Builders, Inc., 865 F. Supp. 2nd 617, 2011 U.S. Dist. LEXIS 93510 (2011),
  the Federal Court predicted that , since Reinforced Earth, the high
  court of Pennsylvania would also permit an illegal alien
  (undocumented worker) to recover economic losses in a personal
  injury law suit.

    • b.     Realities of claiming future wage loss

    • 1.    Speculative nature of future loss based on illegal
      earning to begin with
    • 2. Vocational expert: must he consider what loss
      would be, such as Mexican earning scale, should
      injured worker be returned to his native land, the only
      place where he can legally seek employment
    • 3. Illegal status of worker would then likely be fair
      game and fair subject of credibility in calculating future
      loss.

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   •     BIG QUESTION: IS IT WORTH THE RISK?

   •    Coverage issues under employers liability policy
       where suit is in tort:

   • 1. Effect of preclusions. (most policies exclude
     injuries to employees (question of fact) or for
     injuries to employees of individuals under control
     of sub‐contractor

   • 2.      Subsequent litigation on coverage.

• CONCLUSIONS:

• 1.    Most Undocumented workers, thought illegally here, are people who
  simply wanted a better life and came here to work hard, dependably with hopes of
  providing a better life for their families. They work, pay taxes, go home and most
  stay out of trouble.

• 2.     Under Trump plan, issues are moot.. (Those who remain will be too
  frightened to file a claim

• 3.     Workers Comp claim would be safest way to go if injuries will not prevent
  worker from future employment. If permanent injuries, look for other
  alternatives, as reality suggests that injured worker will be off comp. as soon as he
  is deemed able to do any suitable employment, whether or not there are jobs
  available.

• 4.     Tort action can be viable and only opportunity for fair compensation but the
  slope is very slippery and decisions on how to proceed must be made with total
  disclosure of risks to your client and extreme caution.

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