It is true that retaliation, and specifically workers’ comp retaliation, can come in many different forms. With immigration issues heading up the news, these two cases are examples of yet another way employers try to avoid paying benefits to employees who are injured on the job.
The story of Leopoldo Zumaya
Leopoldo Zumaya, an undocumented worker, was employed as an apple picker in Pennsylvania. He fell from a tree and broke his leg, resulting in permanent nerve damage and chronic pain. Had he been a U.S. citizen, he likely would have received workers’ compensation benefits for his injuries. However, his employer responded to his injuries by reporting his immigration status to the workers’ comp insurance company, which consequently refused to pay his benefits and denying him access to medical treatment. Although Zumaya hired an attorney, he unwillingly accepted a settlement for less than one-third of the compensation he would have received were it not for his immigration status.
The story of Francisco Berumen-Lizalde
Francisco Berumen-Lizalde was an undocumented worker from Mexico who painted houses in Kansas. He fell from scaffolding while painting and severely injured his hand. Shortly after filing a claim for workers’ comp benefits, Berumen-Lizalde was arrested by immigration enforcement officers and prosecuted for visa fraud. He was jailed and deported in what can be assumed was retaliation for having filed his claim.
The work of the ACLU and others
The ACLU and two other organizations, the National Employment Law Project and the University of Pennsylvania Law School’s Transnational Legal Clinic filed a petition on behalf of these two individuals, and many of others like them, from exploitation and discrimination in the workplace. The petition was filed with the Inter-American Commission on Human Rights (IACHR). The road ahead is going to be long, though. Especially in light of the U.S. Supreme Court’s decision in 2002 holding that an undocumented worker, who was terminated for participating in protected union activities, was not entitled to back pay.
The opinion of the IACHR
The IACHR recently published its decision this week finding that Zumaya and Berumen-Lizalde were both entitled to equality before the law and access to justice and labor protections, even as undocumented citizens. As such, the United States was responsible for violating their human rights by denying these things. Their recommendation was that these workers be awarded adequate compensation as well as other injunctive relief. Unfortunately, the commission’s decision and recommendations are not legally binding.
Human rights law seeks to protect the rights of all workers, regardless of their legal status in this country. However, in the last decade, it has become more difficult for undocumented workers, who most often perform some of the most dangerous jobs in the United States and receive only minimal wages, to receive compensation and medical care when they are injured on the job.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.