Many Americans complain about the number of undocumented workers that are living and working in the United States. People are upset about the encroachment on our boarders, the “drain” on our economy and the various negative effects illegal aliens supposedly have when “infiltrating” the United States.
Here in the office, we see a different side. The fact is, there are a multitude of US corporations, developers and legitimate American business entities that rely upon and use the labor of undocumented workers or “illegal aliens.” For example, we see a great deal of this in the New York City construction industry. Many workers are hired despite their lack of a visas, green cards or citizenship. We do not pass judgment on these workers or their employers. They have been doing it this way for years. For some reason, this is a standard in the industry. Big businesses, the biggest developers and construction companies make use of undocumented workers. These employers do not necessarily treat their undocumented workers very well and they often conceal their use of such workers by using shell companies and subcontractors to bring the laborers on the job site to get the work done, but they use these workers nonetheless.
Giordano Law Offices has handled several ongoing Labor Law, Accident and Injury cases stemming from construction job sites where undocumented workers have been injured. These job sites include the biggest properties and developers in New York City, including Larry Silverstein properties (WTC Developer). Often times, the working conditions are sub-par, unsafe and dangerous. The laborers often led to believe that they are not in a position to complain about the conditions. If they do, they will simply get fired and another person, desperate for work, will fill the position. We see this with people from Mexico and Central America, Africa and Asia. And, if there is an accident and a laborer suffers an injury, he or she is urged not to report it and keep quiet. Employers tell workers that they do not have any rights under the law to seek redress, compensation or file lawsuits. Employers often distance themselves from these accident victims, sometimes they will pretend that the worker were never on the job, they will lie, perjure themselves, hide documents, threaten the workers, etc. If you would like some examples, just give us a call.
Here are the Facts: New York State law recognizes that if you are working here in this country (whether you are here legally or not), you have rights if you have been injured on the job. If an undocumented worker is injured on the job, he or she should report it immediately, call for an ambulance, go to the hospital or a doctor, explain what happened to the medical professional (not what the job foreman wants you to say to protect the employer), and immediately find an attorney.
All laborers (including undocumented laborers) have the same rights to recover for an accident or injury on the job site in New York State, whether in the context of a personal injury action, workers compensation claim or disability. This is the way it should be. If our businesses and developers want to make use of such laborers, have them work on scaffolding twenty floors off the ground, then they will have to insure against accidents that may befall these workers.
Whether or not you are an illegal alien or undocumented laborer, you have the right to seek compensation and redress for an accident or injury you suffer on the job.
You have the right to sue for personal injury in Labor Law situations.
You have the right to seek workers compensation.
You have the right to seek disability assistance.
You have the right to receive compensation for pain and suffering.
Your spouse and your children have a right to a loss services claim if you were supporting them and you can no longer do so due to an accident or injury.
You have a right to seek compensation for lost wages, past and future, if you are injured due to a jobsite accident. See Balbuena v. IDR Realty LLC, 6 N.Y.3d 338 (2006). Plaintiff, an undocumented immigrant, was injured while performing construction when he fell from a ramp while pushing a wheelbarrow, sustaining severe head trauma. A lawsuit for negligence and violations of Labor Law § 240(1) and § 241(6). Federal immigration laws do not preempt state laws regarding the permissible scope of recovery in personal injury actions predicated on state labor laws. Furthermore, Congress’ purpose in enacting IRCA was to dissuade employers from hiring undocumented workers. If undocumented workers were unable to recover fully from employers for personal injury, it would incentivize employers to hire undocumented workers.
Pending Federal Legislation: Comprehensive Immigration Reform Act
The Comprehensive Immigration Reform Act would create a new immigration status – “lawful prospective immigrant” (LPI), who would be able to work, travel, and sponsor children and spouses. A person may become an LPI if they are unauthorized to be in the U.S., have been physically present in the U.S. since before the introduction of the bill, and have maintained a continuous presence up until the date of the application (including those in removal proceedings or who have been ordered removed), but individuals with prior criminal convictions may be ineligible. LPI status is valid for 4 years and may be extended if the applicant has continuing eligibility, and LPI can adjust to LPR after 8 years. Individuals with LPI status are not eligible for public benefits or health care.
The biggest changes for employers, specifically, is that immigration status e-verification will become mandatory for employers and penalties against employers for hiring undocumented workers become stricter. Workers receive greater protection from retaliation from employers because the law allows for victims of labor violations to obtain a U-visa, prohibits initiating removal proceedings against an undocumented immigrant based on information provided to DHS by employers as retaliation, and specifically prohibits the denial of any remedies to workers (including back pay) based on immigration status.